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Kelly, J.
Defendant owned a building with a 70-foot frontage on Woodward avenue, between Jefferson and Woodbridge, in the city of Detroit. This 70-foot frontage was divided by a brick wall into two 35-foot units.
Defendant’s unit No 1, a 4-story building, known as 314 Woodward, was leased by the defendant to the plaintiffs, who occupied and used same for a bar or tavern.
Defendant’s unit No 2, a 4-story building, known as 308-310 Woodward (immediately south of unit No 1), was leased by defendant to the Ritter Company.
Another 3-story brick building which will be referred to in this opinion as the Oxenrider building, is located immediately south of defendant’s unit No 2.
On November 8, 1951, defendant’s building unit No 2 completely collapsed. This collapse caused damage to the premises occupied by plaintiffs (unit No 1), and a jury awarded plaintiff Herman Tucker $3,515.60 damages.
Plaintiff Sain Tucker was dismissed at pretrial and the motion to dismiss plaintiff Minnie Tucker was granted at the close of plaintiffs’ proofs.
Two questions are presented in this appeal: (1) Was the building under the control of the defendant or the city of Detroit at the time of the collapse; and (2) Did the lease give to plaintiff a right to recover damages in assumpsit?
Question 1: Did the defendant or the city of Detroit have control of the building in regard to demolition or the taking of necessary steps to prevent collapse?
This question was decided by this Court in Oxenrider v. Gvoic, 340 Mich 591 (October 4, 1954). The collapsed building was between a building owned by Oxenrider and the building occupied, by the plaintiff in this case. In the Oxenrider decision this Court called attention to the fact that the record in that case disclosed that (p 599):
“Prior to July 25, 1951, defendant has substantially complied with all notices served on her by the building department regarding repairs to her building. We note that on August 14, 1951, the common council of the city of Detroit approved the following resolution:
“ ‘Resolved, that the department of public works be and it is Ixereby authorized and directed to immediately dismantle and remove the third- and fourth-story brick manufacturing building at 308-310 Woodward avenue, charging the cost of the wox'k against the property.’ ”
This Court affirmed the judgment denying to Oxenrider damages from the present defendant, stating (p 601):
“In our opixxion the city of Detroit was not acting as an agent for defendant from July 25,1951, to the time the building collapsed. It follows that during this period the building was either in the control of défendant or the city of Detroit. Prom the actions taken by the city, as above mentioned, the defendant had a right to assume that the building was going to be demolished under and by virtue of the authority .of the city. Moreover, the defendant was legally prevented from repairing her building or correcting its dangerous condition by reason of a resolution by the common council adopted in 1947.
“Under the circumstances in this case the control of the building, insofar as its demolition was concerned, was in the control of the city. It follows that defendant cannot be charged with the failure of the city to have the building demolished prior to its collapse.”
There is nothing in the present record to cause this Court to reverse its findings in the Oxenrider Case, supra. Therefore, we now hold that the control of the building, insofar as its demolition was concerned, was in the control of the city.
Question 2: Does the lease provision “that the tenant * * * may peaceably and quietly have, hold, and enjoy the demised premises for the term aforesaid” give to the plaintiff a cause of action in assumpsit?
Plaintiff does not contend that the facts in regard to control of the collapsed building differ in the present case from the facts in the Oxenrider Case, supra. Plaintiff, however, argues that the Oxenrider decision is not controlling because Oxenrider ■ sued in trespass and the present case is in assumpsit for a breach of covenant in a written lease, and further that paragraphs 22 and 24 of the lease apply only to the leased premises.
Paragraph 22 of the lease provides:
“That the landlord shall not be liable for any damage or injury of the tenant, the tenant’s agents or employees, or to any person entering the premises, or to goods or chattels therein, resulting from any defect in the structure or its equipment, or in the structure or equipment of the structure of which the demised premises are a part, or arising through the acts or negligence of other occupants of the structure of which the demised premises are a part, and to indemnify and save the landlord harmless from all such claims of every kind and nature.”
Paragraph 24 provides:
“The tenant agrees to save the landlord harmless from any liability for damages to any persons or property upon or about the leased premises from any cause whatsoever, and agrees to procure at his own expense public liability insurance for the benefit of the landlord in the sum of $10,000 for damages resulting from one casualty, and to keep such insurance in force during the term hereof, and to deliver the policy or policies to the landlord; and upon his failure so to do, the landlord may obtain such insurance and charge the cost thereof to the tenant as additional rental.”
In construing a lease we are cognizant of the general principle that the lessee shall be subject to such interference or disturbance of his possession as results from the exercise of the police power, and this* principle is set forth under annotation entitled “Breach of covenant for quiet enjoyment in lease,” 62 ALE 1257, 1297, where it is stated:
“One of the conditions of all leases is that the lessee shall be subject to such interference or disturbance of his possession as results from the exercise by public authorities of their rights, under either the power of eminent domain or police regulations. In this respect it has been pointed out that all deeds are to be construed agreeably to the intent of the parties; and, in a lease or conveyance containing a general covenant for quiet enjoyment, it must be assumed that the parties had in view eviction, injury, or disturbances to be made by virtue- only of, exist ing rights, and not of rights afterward acquired; such rights cannot be presumed, from the general words of the covenant, to have been contemplated.”
The only comment in plaintiff’s brief, in regard to the contention that paragraphs 22 and 24 of the lease apply only to the leased premises, is as follows:
“A reading of paragraphs 22 and 24 of the lease clearly discloses that both of them apply to liabilities of the lessee only in the leased premises. They could by no possibility or stretch of a rational imagination be extended to circumstances and conditions outside of the leased premises.
“Under the circumstances of this case no liability on the part of the lessee is possible.”
Plaintiff’s cause of action is based upon the allegation that damages occurred because “debris from the collapse of defendant’s said building next door remains as it fell in and upon portions of the premises leased by defendant to plaintiffs.”
To adopt plaintiff’s theory this Court would have to construe the lease in such a way that plaintiff would have no cause of action if damages had been caused by debris falling on plaintiff’s 35-foot leased premises from the building he leased, but that -plaintiff would have the right to damages if debris fell from the adjoining 35 feet that defendant owned and plaintiff did not lease.
The record in this case does not disclose the age of defendant’s buildings, but the pretrial statement established the fact that the collapsed building was “of ancient construction of brick and joists and similar early construction.” This fact was undoubtedly known to plaintiff when paragraphs 22 and 24 were agreed upon.
Defects in the structure that might cause damages were contemplated by the parties to the lease as is clearly disclosed by paragraph 22 of the lease. In paragraph 24 plaintiff agreed to save the landlord harmless for damages on or about the leased premises from any cause whatsoever.
Plaintiff’s bill of particulars contains the following-item:
“Loss of business due to barricading
(May, 1951 to November, 1951) ......$6,000.”
Plaintiff in his counterstatement of fact says:
“A barricade approximately one story high and 15 feet from the front of the building was erected around 310 Woodward in the last 2 weeks of August, 1951 in breach of the covenant for full, peaceful and quiet enjoyment,.”
The record, however, discloses no complaint about the barricade or request to repair the building was made by plaintiff to defendant in this period of more than 60 days between the erection of the barricade and the collapse of the building.
We cannot agree with plaintiff’s contention that the lease gave to him rights of recovery of damages beyond those possessed by Oxenrider, but, to the contrary, find that the lease gave to the defendant rights to resist a claim for damages in the present case that the defendant did not possess in the Oxenrider Case, supra.
The provision in the lease “that the tenant * * * may peacefully and quietly have, hold, and enjoy the demised premises for the term aforesaid” must be construed with the provisions of paragraphs 22 and 24 of said lease, and in so construing this Court holds that the lease did not give to plaintiff a cause in assumpsit.
Other questions raised by the parties hereto need not be commented upon because of the answers to questions 1 and 2 hereinbefore set forth.
The judgment of the lower court is reversed and set aside. Costs to appellant.
Carr, C. J., and Butzel, Smith, Sharpe, Boyles, Reid, and Dethmers, JJ., concurred. | [
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Sherwood, J.
This is an appeal from an order of the Superior Court of the city of Detroit, in chancery, adjudging the defendant guilty of contempt, for having willfully disobeyed the order of the court requiring him to pay alimony and expenses to the complainant. The usual order was made by the court on the 9th day of October, 1883, directing such payment to be made by the defendant. He failed to comply with the order on demand being duly made for the money. Hpon proof of these facts the court made an order requiring the defendant to show cause why an attachment should not issue against him, and he be punished for the alleged contempt. To this order the defendant appeared on the 8th day of December, 1883, and for cause, stated (1) that no sufficient cause was shown for issuing the attachment, or the order to show cause ; (2) that he did not refuse to pay the alimony and expenses as charged, and proposed to counsel for complainant to pay the amount called for, as well as all other expenses in the suit, out of moneys to be raised upon mortgage upon their real estate, not to exceed $1000; (3) that he cannot raise the money to meet all the expenses of the suit except by mortgage on the real estate, and this he is enjoined from doing, but can raise the money if permitted to make the mortgage, and should the complainant join with him in it; (4) that he has always been ready and willing to comply with the order, but he has not the money on hand to do it, and the proceeds of his business are insufficient for that purpose.
When the motion was made for alimony and expenses it was resisted by defendant, and an order was made by the judge of the Superior Court, referring the ability of the defendant to pay, to a circuit court commissioner, to take testimony upon that question, and who made a report thereafter to the court; and after a full investigation of -the matter the court ordered the defendant to make payment of the moneys demanded, as directed in the order.
The defendant’s response to the order complained of does not show any material change in the financial affairs and condition of defendant after the circuit court commissioner’s report was filed.
From the bill of complaint it appears that the complainant was married to the defendant in May, 1870; that she has four cliildren by tbe marriage, (three girls and a son,) the oldest twelve and the youngest four years of age, and that they all live with her; and that he neglects to provide for her or for the children; and that his cruelty towards her and the children is such that she cannot reside with him in their home, but has been obliged to go to her father’s for home and support. She further avers in her bill, and the evidence taken tends to show, that she has no property of her own, and that defendant has two houses and lots in the city of Detroit, (one their homestead, and the other he rents,) worth $2000 each; that he has thirty-six lots in the village of Fen-ton worth $1000, and $4000 in money; that the defendant is a drover — a dealer in cattle — and that he is well and healthy, and his services are worth $50 per week and over; that he has also a paid-up policy of insurance upon his life, of $2000, and debts due him to the amount of $1000 or over.
The complainant made her petition for alimony and expenses pendente lite, based upon her bill of complaint, to which defendant made answer, saying, substantially, complainant had left her home; that she had had control of his finances, and had several hundred dollars in her possession of his money; that she had carried on a millinery business; denied he had on hand over $250 cash when the bill was filed; that but little could be realized from, the debts due him; admitted he owned the real estate and life-insurance policy ;■ that he used the homestead; that the rent of the other property was $125 per year; that his income was about $1200 per year.
On the return made by the commissioner the order for payment of the amounts complained of was made. These amounts appear to be reasonable and quite proper under the circumstances of the case. The amount awarded was twelve dollars per week for the wife and children, and such sum as might be necessary for the other expenses in the progress of the cause on the part of complainant.
Of course, in this class of cases,- very much is left to the careful examination and reasonable discretion of the court granting tbe order; and his familiarity with the case and superior means and opportunity of knowing the disposition, motives and character of the parties, and the credibility of their affiants and witnesses, should make his decision conclusive, unless a gross abuse of discretion is clearly made to appear. The order of the court in such cases should be promptly complied with; and when the court makes an order to show cause \vhy such compliance has not been made, and insufficient cause is shown, and the court finds, as in this case, a willful disobedience of the order on the part of defendant, technical irregularities in complainant’s proceedings will not be held a sufficient excuse for such non-compliance, or allowed to defeat the enforcement of the order.
It is claimed by the defendant in this case that he is unable to raise the money necessary, without mortgaging the property for that purpose, and that he is prevented from so doing by the injunction in the case; but we think the neglect arises more from indisposition to comply with the order than inability, and there is nothing in the suggestion in regard to the injunction. It does not, when properly construed, prevent him from mortgaging his property, other than the homestead,t for the purpose of raising the money to meet the requirements of the order of the court. There has been no effort shown to obtain the signature of the wife to such a mortgage; neither does there appear any necessity for her signing such a mortgage.
Objection is made that the jurat to the affidavit showing service upon the defendant of the papers upon which the order to show cause was made, is defective. It is enough to say upon this point, the answer of the defendant to the order is very general, and upon several material matters ambiguous and evasive. This particular ground of objection now made in this Court does not appear to have been called to the attention of the court below, — is technical, at least; and no injustice has been caused by the omission complained of, and under such circumstances will not be allowed to prevail here.
This class of cases is becoming quite frequent, and many times the delay and hardship caused thereby are very great, and they seldom serve any good purpose. It is only where the action of the circuit or Superior Court is clearly shown to have been erroneous, or inadvertence or gross abuse of discretion has occurred, that this Court will feel at liberty to interfere with the orders made in this class of cases in those courts.
None of these things are apparent upon this record, and the action of the judge of the Superior Court in the premises is affirmed, with costs to complainant.
Campbell and Champlin, JJ. concurred.
Cooley, C. J.
I think the right of the respondent to mortgage his property to raise the amount he was directed to pay should have been distinctly recognized by the court before ordering payment. And I do not assent to all that is said in the foregoing opinion, either upon the merits or as to review of such orders. | [
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Boyles, J.
The first question in.this case, which, however, could control the result, is whether an appeal to this Court in a criminal case, merely by filing a claim of appeal, will confer jurisdiction, here to review a criminal case, where the appellant has not first obtained leave to appeal.
In 1953 the defendant-appellant Daniel William Stanley was tried by jury, convicted and sentenced In the recorder’s Court for Detroit for taking possession of and driving away a motor vehicle belonging to another without authority, under section 413 of the penal code. On July 29, 1954, appellant’s motion for a new trial was. denied by the trial court and on January 21, 1955, he filed a claim of appeal under Court Rule No 56, § 1, and Court Rule No 57, § 1 (1945), without first obtaining leave to appeal. On June 10th the attorney general and the prosecuting attorney for Wayne county joined in filing in this Court a motion to dismiss the appeal on the ground that the defendant-appellant had proceeded to appeal ■as of right, without attempting to obtain leave to appeal as prescribed in CL 1948, § 770.3 (Stat Arm 1954 Rev § 28.1100), and Court Rule No 60, §2(a), par 3 (1945). Hearing on this motion was deferred for later consideration when the record and briefs on appeal had been filed.
On April 5, 1955, the trial judge settled a hill of exceptions in the cause upon a stipulation signed by the prosecuting attorney and counsel for the defendant that the bill of exceptions might he settled without prejudice to the right.of the people to move in this Court for a dismissal of the appeal because the defendant had not applied for or obtained leave to appeal. The certificate of the trial judge in certifying to the bill of exceptions stated:
“that defendant has proceeded to appeal as of right, •claiming under authority of PA 1954, No 53, without having obtained prior leave from the Supreme Court, and that by stipulation of counsel, settlement of the hill of exceptions herein is without prejudice to the people’s right to move in the Supreme Court for a dismissal of the appeal by reason of defendant’s failure to apply for and obtain leave to appeal.”
The motion as well as the case has now been submitted here on briefs. Preliminary to a decision on the case itself, it is necessary to consider and decide the motion to dismiss. If the appeal is dismissed, the Court will not reach a consideration of any other question raised in the briefs in the case.
At the outset, in our consideration of the motion to dismiss, it must be made plain that the Court is not passing upon the defendant’s right to appeal, and to have in this Court a review of his conviction and sentence. The question here relates to procedure. It involves the questions whether this Court has constitutional (as well as statutory) authority to promulgate and enforce rules governing the procedure whereby we obtain jurisdiction to review a conviction and the sentence in a criminal case; whether we have made such rules; and whether their procedure has been followed in the instant case.
There can be no question but that the legislature has authorized this Court to make rules regulating appellate procedure. In 1929, subsequent to the enactment of the Judicature Act (1915) and the code of criminal procedure (1927), hereinafter discussed, the legislature passed PA 1929, No 27, titled:
“An act to authorize the Supreme Court to make rules regulating appellate procedure,”
which states:
“The Supreme Court may, by general rules, provide simplified forms, methods, and procedure by which such Court and other courts of record shall exercise the appellate jurisdiction conferred upon them by law, and such rules, while in force, shall be controlling, any statutory provision to the contrary notwithstanding: Provided, That no right to a review conferred or preserved by the Constitution of this State shall thereby be denied or diminished.” (Italics supplied.)
See, also, PA 1927, No 377, which required the governor to appoint, before June 1, 1927, a commission of 5 attorneys to confer with the Supreme Court, suggest revised rules of practice and procedure in the Supreme Court and all other courts of record and a simplified method of appellate procedure, and report the same to this Court. These acts later led to the adoption of the present court rules governing appeals, by filing a claim of appeal, or by obtaining-leave to appeal (Rule No 60).
Aside from the aforesaid statutory authority, this Court, on many occasions, has recognized and relied upon its inherent constitutional authority to exercise rule-making powers, including those pertaining to its own practice and procedure. The power to regulate its procedure inherently rests in the Supreme Court. Brown v. Buck, Kalamazoo Circuit Judge, 75 Mich 274 (5 LRA 226, 13 Am St Rep 438), Behr v. Baker, 257 Mich 487; Pear v. Graham, 258 Mich 161; Attorney General v. Lane, 259 Mich 283; People v. Hurwich, 259 Mich 361, 372; In re Widening Woodward Avenue, 265 Mich 87, 90, 91; Jones v. Eastern Michigan Motorbuses, 287 Mich 619; St. John v. Nichols, 331 Mich 148, 159; Tomlinson v. Tomlinson, 338 Mich 274, 276-278; In re Koss Estate, 340 Mich 185, 189. Also, as to the nature, right of review and method of review by appeal in criminal cases, see 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), §§786, 787, and cases cited.
“The Supreme Court shall by general rules establish, modify and amend the practice in such Court and in all other courts of record, and simplify the same.” Mich Const (1908), art 7, § 5.
This Court has the authority to make and enforce rules governing the procedure to be followed in invoking the appellate jurisdiction of this Court for the review of convictions and sentences in criminal cases. Such rules have been adopted and are in force. In the instant case appellant admits that he has not complied with the rules, not having sought or obtained leave to appeal.
This takes us to the question whether the statutory procedure for issuing “writs of error,” the nomenclature used in the legislative enactments hereinafter referred to, with particular reference to the judicature act and the amendment thereto by PA 1954, No 53 (Stat Ann 1955 Cum Supp § 27.2591), on which appellant relies, controls the manner of, and the procedure for, taking appeals to this Court in criminal cases. In that connection, the Court will take judicial notice of its records and files, which show since these rules were adopted in 1933 and again in 1945 they have controlled, as to the method of invoking the appellate jurisdiction of the Court, and that the method of review by issuing a writ of error has not been used during that time. Apparently, in practice, that method has been superseded by the rules.
The Michigan Constitution provides:
“The Supreme Court shall have a general superintending control over all inferior courts; and shall have power to issue writs of error, habeas corpus, mandamus, quo warranto, procedendo and other original and remedial writs, and to hear and determine the same. In all other cases it shall have appellate jurisdiction only.” Article 7, § 4, Mich Const (1908).
The legislature has implemented the constitutional provision as applied to writs of error, as follows:
“Sec. 9. The Supreme Court shall have a general superintending control over all inferior courts, to prevent and correct errors and abuses therein, where-no other remedy is expressly provided by law, and shall have also jurisdiction of suits, actions and matters brought before it by writ of certiorari or writ of error, when the same shall be allowed by law to. any inferior court, to magistrates and other officers, as well in cases of prosecution for any offense, misdemeanor or penalty, in the name of the people of this State, as in other cases.” PA 1915, No 314, chap 1, § 9 (The judicature act of 1915 [CL 1948, § 601.9-(Stat Ann §27.29)]).
The legislature has further implemented the constitutional provision by referring directly to writs of error, as follows:
“Sec. 1. "Writs of error upon any final judgment or determination, where the judgment exceeds in amount $500, or where judgment has been rendered upon a directed verdict for defendant in cases involving a claim of more than $500, and in final judgment in all criminal cases involving the personal liberty of a party thereto when the judgment is against such party, may issue, of course, out of the Supreme Court, in vacation as well as in term, and shall be-returnable to the same Court; and in all other eases such writ may issue in the discretion of the Supreme Court or any justice thereof upon proper application: Provided, however, That if said ease involves a construction of the Constitution or of any statute of this State, or any matters of great public importance or involves the contest of a will, such application need only show such fact and, when filed, the writ of error shall issue of course.” (Italics supplied.) Section 1, chapter 50, judicature act, supra (CL 1948, § 650.1, as amended by PA 1953, No 4, and PA 1954, No 53 [Stat Ann 1955 Cum Supp § 27.2591]).
The concluding italicized words, as above indicated, were added to this section by PA 1953, No 4. This section was again amended by PA 1954, No 53, in which amendment the above concluding italicized words were re-enacted and also there was added to this section the other italicized language as above indicated.
This section, as last amended by PA 1954, No 53, is now relied upon by the appellant as the basis for his claim that by filing a claim of appeal under Court Rules No 56, § 1, and No 57, § 1 (1945), and also by applying for a writ of error, he is entitled to a writ ■of error of course, and an appeal, without first filing an application for and obtaining leave to appeal. Reference will again be made to said amendment later in this opinion.
Subsequent to the enactment of the judicature act, ■supra, a “code of criminal procedure” was enacted by the legislature in 1927 (PA 1927, No 175 [CL 1948, '§ 760.1 et seq., as amended (Stat Ann 1954 Rev §28.841 et seq., as amended)]). The title of said ■code of criminal procedure as applicable here, states that it is
“An act to revise, consolidate and codify the laws relating to criminal procedure and to define the jurisdiction, powers, and duties of courts and of the judges and other officers thereof under the provisions of this act; * * * to provide for procedure relating to new trials, appeals, writs of error and bills of ■exception in criminal causes.” (Italics supplied.)
Said code of criminal procedure also provides as follows:
“Writs of error in criminal cases shall issue only in the discretion of the Supreme Court or any justice thereof, on proper application therefor.” PA 1927, No 175, chap 10, § 3 (CL 1948, § 770.3 [Stat Ann 1954 Rev §28.1100]).
It further provides:
“As soon as practicable after the passage of this act the Supreme Court shall adopt such rules of practice as may be necessary to carry out the provisions of said act.” PA 1927, No 175, chap 10, § 14 (CL 1948, §770.14 [Stat Ann 1954 Rev §28.1111]).
“All acts and parts of acts relative to exceptions before sentence in criminal cases, and all other provisions of law inconsistent with the provisions of this chapter, are hereby expressly repealed.” PA 1927, No 175, chap 10, § 15 (CL 1948, § 770.15 [Stat Ann 1954 Rev §28.1112]).
The appellant relies on PA 1954, No 53, herein-before referred to, on which to base his claim that we have jurisdiction of his appeal, without his having first obtained leave to appeal. Particularly, appellant relies on the provision therein that a “writ of error” shall be issued as “of course.”
It should be noted that the title to the judicature act, supra, which PA 1954, No 53, purports to amend, obviously was intended to apply to, and in express terms does apply to, “the forms of civil actions: the time within which civil actions and proceedings may be brought in said courts; pleading, evidence, practice and procedure in civil actions and proceedings in said courts.” Nowhere does the title of the act, nor the provisions in the act itself, expressly apply to appeals in criminal cases. To the contrary, the legislature, as before indicated, subsequently enacted the code of criminal procedure, applying specially and solely to that subject. Appellant claims that PA 1954, No 53, applies to appeals in criminal cases, although in order to do so it would amend the code of criminal procedure, notwithstanding it makes no reference to its provisions. PA 1954, No 53, as construed by appellant, would be read to provide that the appellant may invoke the jurisdiction of this Court by having a “writ of error” issued by the Court “of course.” If this construction were adopted, it would repeal section 3, chapter 10, of the code of criminal procedure wherein that section expressly requires that “writs of error in criminal cases shall issue only in the discretion of the Supreme Court or any justice thereof, on proper application therefor” (hereinbefore quoted). Such a repeal by implication, and perhaps by inference and indirection, is not favored in the law. We doubt that the legislature should be considered to have intended such a repeal, by this amendment (PA 1954, No 53) to the civil practice act.
The title of the judicature act negatives a conclusion that it was intended by the legislature to apply to procedure in criminal cases. The later enactment of the code of criminal procedure, without making reference to the judicature act, shows the legislative intent. These -2 acts were obviously intended by the legislature to apply to the practice and procedure in civil cases separate from that in criminal cases. A mere reading and comparison of the titles of the judicature act and of the code of criminal procedure can lead to only one conclusion— one was intended by the legislature to refer to practice and procedure in civil cases, and the other to criminal procedure.
“The Constitution 1908 (art 5, § 21), provides that—
“ ‘No law shall embrace more than one object, which shall be expressed in its title.’
“This provision was adopted in our first Constitution, and has remained in the several subsequent revisions without change. Its purpose and the effect to be given to it by the legislature have been many times discussed and passed upon by this Court. It may be said at the outset that the provision is de signed to serve 2 purposes. First, to prevent action by tbe legislature without receiving the concurrence therein of the requisite number of members by— ‘bringing together into 1 bill subjects diverse in their nature, and having no necessary connection, with a view to combine in their favor the advocates of all.’ —what is commonly spoken of as log-rolling-in-legislation — and also to prevent clauses being— ‘inserted in bills of which the titles gave no intimation, and their passage secured through legislative bodies whose members were, not generally aware of their intention and effect.’ People v. Mahaney, 13 Mich 481, 494, 495, and, second, to ‘challenge the attention’ of those affected by the act to its provisions. People v. Wohlford, 226 Mich 166, 168.” Commerce Guardian Trust & Savings Bank v. State of Michigan, 228 Mich 316, 330, 331.
See, also, MacLean v. State Board of Control for Vocational Education, 294 Mich 45, 48, 49; Leininger v. Secretary of State, 316 Mich 644, 648, 649.
The purpose of an act must be indicated by its title, and the body of the act must not be inconsistent with the title. The title must indicate its purpose, and the purpose of the statute cannot be changed by an amendatory act. Vernor v. Secretary of State, 179 Mich 157 (Ann Cas 1915D, 128). An amendment to a statute including matter foreign to the title is invalid. Stewart v. Father Matthew Society, 41 Mich 67.
See, also, Adams v. Acme White Lead & Color Works, 182 Mich 157 (LRA1916A, 283, 6 NOCA 482, Ann Cas 1916D, 689); State Mutual Rodded Fire Ins. Co. v. Foster, 267 Mich 118; Arnold v. Ogle Construction Co., 333 Mich 652.
PA 1954, No 53, offends-article 5, § 21, of the Michigan Constitution (1908)-:ahd does not control the procedure here. Because the appellant admittedly has not sought and obtained leave to appeal, under the above -rules, his cáse is not here on appeal.
However, it is proper to add that appellant’s failure, under said rules, to bring his case here for review, does not mean an inflexible or necessarily final inhibition against this Court receiving jurisdiction to review his case. Section 3, Court Rule No 57 (1945), provides that an appellant, upon timely and proper showing within such further time as may be permitted by statute, may make a delayed application and obtain delayed leave to appeal.
For the reasons stated herein, an order will be entered granting the motion to dismiss the appeal, without prejudice to appellant’s filing a timely delayed application for leave to appeal. In view of this conclusion, other questions raised do not require consideration.
Motion to dismiss granted. No costs, a public question being involved.
Dethmers, C. J., and Sharpe, Smith, Reid, Kelly, and Carr, JJ., concurred.
Black, J., took no part in the decision of this case.
CL 1948, § 750.413 (Stat Ann 1954 Kev § 28.645).
“Writs of error in criminal cases shall issue only in the discretion of the Supreme Court or any justice thereof, on proper application therefor.”
CL 1948, § 691.21 (Stat Ann § 27.111).
Court Rules Nos 55-60, inclusive (1945).
The Court Rules'designate'the review as being taken by filing'a, .claim of appeal; not by issuing a writ of error.
See CL 1948, § 600.1 et seg. (Stat Ann § 27.1 et seg.).—Eepobtee. | [
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Sherwood, J.
The respondent was convicted in the Ionia circuit court of an assault with intent to murder one Riley Wilson, on the 19th of September, 1882, and sentenced to two years’ imprisonment. The defense made was justification in defense of his person and property.
The respondent owned forty acres of land in the township of Sebewa, in Ionia county, and Wilson was engaged in mercantile business in an adjoining township. In 1879 respondent rented his farm to one Rogers and removed to Muskegon county, and there remained until July, 1882, when he returned to the vicinity of his farm. While at Muskegon Wilson commenced a suit by attachment against defendant as a non-resident, and in August, 1882, the sheriff of Ionia county, under the proceedings taken in the attachment suit, made a sale of Dann’s interest in the wheat raised and stacked upon the farm that year, and Wilson became the purchaser on the sale, and left the same, as he claimed, in possession of Bogers, who was then occupying the farm as defendant’s tenant.
The defendant claimed and proposed to show — -first, .that by reason of defective legal proceedings no title to the wheat passed to Wilson on the sale made by the sheriff; second, that on the 21st of August, 1882, Bogers released his interest in the premises under the .lease to the defendant, and made surrender thereof to him; third, that prior to the sheriff’s levy defendant had sold the wheat to Mrs. Layman; and at the time the attachment took place he was there upon the premises to look after the wheat and to place it in the granary in the barn for her. If either of these propositions was sustained, then Wilson had no interest or title to the wheat, and was himself a trespasser in entering upon the premises to take the same away.
The testimony shows that in the morning of the day the shooting occurred Wilson was informed that if he went to the farm for the wheat he would have no trouble if he took it under a writ of replevin; otherwise he would find difficulty, as Dann intended resisting his taking it. Wilson, however, went to the farm with the avowed purpose of getting the grain, and if necessary, by force. The record further shows that Wilson had been informed and understood that the defendant would be there that day to take charge of the wheat, and that he claimed to be entitled to control the same. And with this understanding Wilson seems to have gone to the farm prepared with a pistol to defend his action in taking the grain, and if necessary in doing so by using his weapon.
It appears the defendant had taken counsel of a lawyer as to his legal rights to the custody of the wheat, and was informed that he was entitled to it and that Wilson had no right to take it away.
For the purpose of showing Wilson had no right to the wheat, by showing the execution sale illegal, the defendant’s counsel offered in evidence the record of the proceedings in the case of Riley N. Wilson v. Walter Dann (it being the case in which the execution issued). This was objected to as immaterial, and the court sustained the objection. The defendant also offered to show that prior to the levy by the sheriff he had sold the wheat claimed under the levy, to Mrs. Layman, and that she was the owner thereof. This testimony was also ruled out by the court. All of this testimony was propel1, and should have been received. No other claim was made by Wilson to the wheat, except what he derived through the levy and sale, and if he obtained none he was a trespasser.
Defendant was the owner and in possession of the farm, and Mrs. Layman of the wheat, and he acted for her in ■caring for it, and he had a right to defend this property against the encroachments by Wilson, and use so much force as was necessary for that purpose. It needs no citation of authorities to maintain this elementary principle of the law. A man is not obliged to abandon his farm, his home or his goods to a trespasser or intruder unless he voluntarily chooses so to do. On this record we must assume that the defendant could have made the proofs* offered and rejected.
It further appears that, having this right to protect'the property, the defendant, while in his efforts to assert and maintain it, was confronted by a concealed weapon used by Wilson against him, and in making his defense against this attack used his own pistol. This he had the right to do if he feared, and had good cause to fear, his life was in danger. In such cases courts cannot and will not undertake to pass upon the surroundings with very great nicety in determining just when, and at what particular stage of the affray, the defendant may be justified in using a deadly weapon in defending his person. Every case must be governed by its own particular circumstances, and they vary to such an extent, and depend so much upon appearances and incidents occurring at the moment of greatest danger, that he who encounters it must, to a very great extent, be left to determine for himself the means necessary to be used for his own protection, and in reviewing the discretion used by him, no great amount of speculation and refinement as to probabilities can safely be indulged in by the court.
There are many nice questions concerning the extent of the right of self-defense, but they do not, we think, exist in this case. It is sufficient to say that the facts, as they appear upon the record, and as we think they were properly proposed to be proved, if bélieved by the jury, would have made the respondent’s defense perfect; and it is difficult to see why Wilson should not be regarded as the aggressive party, and equally culpable, at least, with the respondent. He went to the farm to take the wheat by force; he went armed with a pistol, and evidently with an intent to use it, if necessary, to accomplish his object, and did use it for that purpose. In the case of Pond v. People 8 Mich. 177, this Court held: “ If any forcible attempt is made, with a felonious intent against person or property, the person resisting . is not obliged to retreat, but may pursue his adversary, if necessary, till he finds himself out of danger.” A reasonable apprehension of such danger is all that is necessary in such case.
Upon the People’s own showing in this case, had death resulted the defendant would have been guilty of no more than manslaughter, and under all the circumstances a new trial would be necessary.
The judgment of conviction must be reversed and the respondent discharged.
The other Justices concurred. | [
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Sharpe, J.
Prior to October 7, 1953, defendants were the owners of an approximately 400-acre farm in Vernon and' Shiawassee townships, Shiawassee county, Michigan, upon which they resided. On the above date they entered into a sales agreement with plaintiff, a copy of which, reads as follows:
“ADams 5166
“James' E. Kirk Co. Realtors
“Management — Sales—Leases—Insurance
“318 Michigan St., Toledo 2, Ohio
.“By and between Lucas A. Vaccaro and Alice 0. Vaccaro, husband and wife, owners and James E. Kirk Company.
“Entered into this 7th day of October, 1953, at the below described subject property.
“In consideration of your agreement to use your efforts to find a purchaser for our property, we hereby grant you the exclusive right for a period, from .October 7, 1953,. to July 1,, 1954,. to sell property described as follows:
“Approximately 400 acres in .sections 6 and 1 in Vernon and Shiawassee townships, Shiawassee county, in the -State of 'Michigan, for the sum of $145,000 for the entire property* including all chattels. It is agreed that this, price is subject to a revision of the inventory of the chattels at time of sale, or upon any other price, terms .or exchange to. which we consent. Said inventory .list attached, hereto. '
“If, you are" successful in, find(ing) a purchaser for our property during the t&rni of your exclusive agency,- or' if the same is sold by us or any other person during the term of your exclusive agency, or if the property is sold after the expiration of your agency to any person or persons to whom you have quoted the same for sale during the time of your exclusive agency, we agree to pay'you a selling commission of 7-1/2% on any agreed selling price, but in the event the property is sold by James E. Kirk without the services of another, broker, -the commission will be 5%. In the event of such sale, we will execute and deliver to said purchaser a deed or other instrument of sale for said property with full covenants of warranty.
“(You agree in the event C. D. Knechtel sells said property you will accept a commission of 2%. We reserve the (A.O.V.) right to sell all the chattels now on the (L.A.V.)
land without commission to you.) (JEK)
“Accepted James E. Kirk Co.
Per James E. Kirk
“Lucas A. Vaccaro
“Lucas A.-Vaccaro
“Alice O. Vaccaro"'
“Alice O. Vaccaro”
Plaintiff is a licensed real-estate broker in Ohio and Michigan, having principal offices in Toledo, Ohio. Plaintiff had advertised the defendants’-farm in a publication to which he refers as the “Wall Street Journal of Commerce” and a German language newspaper printed in Milwaukee, Wisconsin. Plaintiff had shown the farm to a prospect and' had made several trips to the farm. During the period in which the listing was in' effect, the defendants sold their farm through another real-estate broker for $80,000 and refused to pay plaintiff a commission in accordance with the contract.
On March 10, 1954, plaintiff began an action .to recover its commission by filing a declaration in the circuit court of Shiawassee county. On March 23, 1954, defendants filed an ..answer to plaintiff’s .declaration in which they allege:
“Answering paragraph 4 they admit that an agreement was signed but that the same was not of the free act and deed' of the defendants herein, ' a-iid further state that said agreement was induced by the plaintiff through.his acts whereby he furnished to the defendants herein intoxicating liquor, and while the defendants were, under the influence of intoxicating liquor he presented to them certain papers-which he-requested" that they sign, and they admit that they did sign an agreement but that upon closely examining said agreement it clearly appears that said agreement is ambiguous, and further, they say that said agreement is void and of no force and effect for the reason that the same was induced by the plaintiff by placing the defendants under the influence of intoxicating liquor so that they were not possessed of their faculties at the time the said agreement was signed.”
On October 1, 1954, defendants filed an amended ‘answer in which they allege:
“That the plaintiff, prior to the signing of the exhibit which is attached to their declaration, represented to the defendants herein that he was a licensed real-estate broker, authorizéd to sell real estate in the States of Michigan, Ohio, Indiana, Illinois and Wisconsin, and further that he would actively contact all of the brokers within the said area, listing the property that defendants owned for sale, and further that he would actively advertise continuously ■the sale of said property during his entire listing .within the said area, and the defendants relying upon plaintiff’s representations, and believing them to be true, were induced by said representations to sign the agreement that it [is?] attached to plaintiff’s declaration ; that the defendants have now discovered that his said representations were untrue and false; that plaintiff represented to the defendants that he would 'obtain for them the sum of $90,000 for the sale of flieir farm, plus the further sum of $55,000 for the sale of their stock and equipment; that defendants are now informed and believe and charge it to be the truth that it was impossible to obtain the said sum of $90,000 for the sale of their farm and that, in fact, the said farm was sold at a later date by •another broker, who was paid 5% for the full sum ■of $80,000.”
The cause came on for trial a few davs after defendants’ amended answer was filed. During the trial plaintiff’s attorney made a motion to strike the ■amended answer. The trial court made the following ruling:
“In connection with the motion which has just been made as to the additional special defense which was filed in this court on October 1, 1954, wherein the defense is claiming on the ground of certain false representations made prior to the entering into of the contract, which induced the defendants to enter and agree to the same, the court is of the opinion that as to the representations that the plaintiff was a licensed real-estate broker authorized to sell real estate in Michigan, Ohio, Illinois and Wisconsin, that matter may stand, but as to those further allegations which are promissory in nature, wherein the broker is alleged to have promised to do certain things, it is the opinion of the court that they being promissory in nature, cannot be a basis for fraud, and the court will not permit evidence to be introduced in regard to those points. * * *
“So your position may be preserved on the record, Mr. Joseph, let the record show that I am at this time refusing to permit any evidence to be introduced as to allegations in the amended answer filed October 1, 1954, which are promissory in nature, something to be done in the future, because it. is the opinion of the court that such promises cannot be grounds for defense of fraud.”
The agreed statement of facts shows:
“The jury rendered a verdict in favor of the plaintiff, and against the defendants, in the sum of $2,-000.”
Defendants appeal and urge that the trial court was in error in refusing to permit evidence as to allegations promissory in nature.
We need cite no authority to establish the rule that fraud cannot be presumed, but must be established by a preponderance of the evidence. It is also a general rule that statements promissory in their character that one will do a particular thing in the future are not misrepresentations, hut are contractual in their nature, and do not constitute fraud, see Boston Piano & Music Co. v. Pontiac Clothing Co., 199 Mich 141, 147, 148. In the above case we cited with approval from 12 RCL, Fraud and Deceit, § 21, pp 254, 255, the following:
“ ‘Since a fraud must relate to facts then existing" or which have previously existed, the general rule is that fraud cannot be predicated upon statements promissory in their nature and relating to future actions, nor upon the mere failure to perform a promise, or an agreement to do something at a future time, or to make good subsequent' conditions which have been assured. Nor, it is held, is such nonperformance alone even evidence of fraud. Reasons given for this rule are that a mere promise to perform an act in the future is not, in a legal sense, a representation, and a failure to perform it does not change its character. Moreover, a representation that something will be done in the future, or a promise to do it, from its nature cannot be true or false at the time when it is rnade. The failure to make it good is merely a breach of contract, which must be enforced by an action on the contract, if at all.’ ”
See, also, Howard, v. Reaume, 310 Mich 119; and Broaden v. Doncea, 340 Mich 564.
We enunciated the same doctrine in Roy Annett, Inc., v. Kerezsy, 336 Mich 169. This case involved the obtaining of options by a real-estate broker, and the optionees alleged that certain false representations were made by the broker in obtaining the options. We there said (pp 172,173):
“Those statements, -according to the record, made reference to what would happen to the property in the future. It is a generally accepted rule that ‘in order that there be actionable fraud, the representa tion'must- relate to a matter of fact. Further, it must,, ordinarily; relate to a past or existing fact,. or an' alleged past or existing fact, and not to the future, or-future events or occurrences.’ 37 CJS, p 222.
“ ‘An actionable representation must relate to past dr existing facts and cannot consist of mere broken promises, unfulfilled' predictions, or erroneous conjectures as to future events.’ 26 CJ, p 1087, as quoted with approval in Mieske v. Harmony Electric Co. 278 Mich 61, 66.
“ ‘The' general rule, which is supported by numerous decisions in almost all American and British jurisdictions, is that fraud must relate to a present or preexisting fact', arid cannot ordinarily be predicated on representation's or státements which involve mere matters of futurity or things to be done or performed in' the future.’ 23 Am Tur, p 794.”
.It should be noted that defendants’ answer admits an agreement was signed as stated in plaintiff’s declaration, but that said agreement was brought about while.defendants were under the influence of intoxicating liquors. In the amended answer filed by -defendants it is alleged that plaintiff informed defendants that he was a licensed réál-estate broker and authorized to sell real estate in Michigan, Ohio, Indiana, Illinois, and Wisconsin.
The trial court charged the jury:
“I further charge you, members of the jury, that in order for a false representation to constitute a valid defense, that it must amount to a misrepresentation of a material past or existing fact, knowingly made with the intent that the opposite party shall act upon it, and in this connection, I charge you that if it has been proven in this case that the plaintiff was licensed to sell real estate in Michigan, the fact that he was not so licensed in other States would not prevent him from advertising in other States or seeking buyers in other States for the sale of land located in Michigan. It must appear that the opposite party, the defendants in this case, had no knowledge of the falsity of the representation, and that they relied upon its truth, and thereby took the action which they did take.”
We also note that the pleading filed in this case by defendants fails to allege that there was any intention on the part of plaintiff not to perforin at the time the alleged representations were made. We also note that the result of the jury’s deliberations shows that they did not believe defendants’ allegations.
The other allegations in defendants’ answer allege that plaintiff promised to contact brokers within the States above mentioned and that he would advertise the sale of the property. Such statements, if true, relate to future events and under the rules and authority, above cited, cannot be made the basis of fraud. The trial court was not in error in refusing this evidence to be presented to the jury.
The judgment is affirmed, with costs to plaintiff..
Carr, C. J., and Butzel, Smith, . Boyles, Reid, Dethmers, and Kelly, JJ., concurred. | [
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Campbell, J.
Complainant, who in his bill claims to be a trustee and parishioner of Ste. Anne’s church, Detroit, files the bill in this cause to obtain the rescission of a deed made in the name of the corporation of that church to James Caplis, who conveyed to John J. Bagley, now deceased, of a parcel of land heretofore claimed and occupied by the corporation, between Lamed and Congress streets, in the city of Detroit, extending from Bandolph street westward 250 feet. The grounds relied on are that the land was not subject to sale ; that it was not sold by the action of a sufficient number of trustees; and that the terms of sale were not as good as might have been obtained. The parties defendant are the curate or rector and George W. Yan Dyke, An toine Morass and Gregory Campau, claiming to be trustees, and James Caplis and the heirs of Gov. Bagley, as purchasers. Caplis demurred and the bill was dismissed.
The bill which was filed August 17, 1882, is not sworn to, and contains no full statement or exhibit of most of the important documents on which the claim to relief is based. Its imperfections of this kind are so serious that it is difficult to discuss several of the questions which were somewhat touched on during the argument, and we shall only refer to such matters as seem to be essential.
The corporation known as the Catholic, Apostolic and Homan Church of Ste. Anne, of Detroit, is alleged to have filed the proper articles to complete its corporate rights under “An act concerning religious societies,” passed April 3d, 1807. 1 Terr. L. 209. Section 2 of that Act, recognizing the existence of the church, and its ownership of property, provided for its adopting such regulations as it should see fit for the management of its estates and temporalities, and choosing such persons as it should think proper, who should assume the style and title designated, and that the articles should be properly certified and recorded, and that the body corporate should become seized of all the present property, temporalities and estate of the church. A previous section had provided that trustees might take and alien any kind of property except slaves. In accordance with this Act, the church, by a proper article, provided that the affairs should be managed, as they state had already been done from time immemorial, by the curate, (as the bill renders the phrase from the original,) and four curators or trustees chosen by the “ ancient trustees,” and that three trustees, or the curate and two trustees, should be a quorum to transact business. Enough appears to show what is' historically familiar, that this is an ancient French parish organized according to the methods of the Gallican church, with elected lay trustees as managers of its temporalities. The treaty of Paris in 1763 recognized all these old organizations as entitled to protection, and the Act of 1807 was plainly designed to enable the parish to obtain record evidence of its corporate constitution under the American local government. The parish has been since affirmatively recognized by. Congress, by the treaty-making power, and. by the State as well as territorial legislature, as owning land in Detroit and elsewhere. See 7 TJ. S. Stat. at L., p. 166; 6 id. 315, (where reference is made to the deed from the Governor and Judges set forth in the bill;) 3 Terr. L. 977; Sess. L. 1841, p. 136. By section 2 of the schedule of the present Constitution it was provided that all rights of bodies corporate should continue.
The bill states that on the 11th day of January, 1817, the Governor and Judges conveyed to the corporation, among other lands, sixteen lots specified in section one, with a proviso that on four of them no building should be put up to prevent access through Randolph street to the rear of the city until 1831, unless another communication should be opened. Permission was also given to use the interior triangle in said section for building a church thereon, provided it should be built within a time specified, but not granting a fee. The next year the Governor and Judges made a further grant of the use of this triangle and adjoining open space so long as the church should be used for public worship. In 1834 the Governor and Judges made a deed granting to this corporation and its successors, forever, the use of the interior and central triangle of section 1, “ to the end that they may from time to time, as they shall deem necessary, erect thereon any buildings or improvements suitable for ecclesiastical, literary or benevolent purposes.” This being a grant of an estate in fee-simple, with no conditions or reservations and no clauses of forfeiture, appears, so far as the bill shows, to have vested all the title that the Governor and Judges could grant, in the corporation.
And it is proper here to say that the bill contains no averments whatever which show directly where or how great this interier triangle is, or whether the land now in controversy is a part of it. Neither does the bill show the consideration of any of these deeds, and whether they were given as gratuities, purchases, or in exchange for the other property rights of the corporation in the old town, concerning which the Governor and Judges had plenary power of settlement. The Act of Congress of 1824 refers to this deed of January 11, 1817, as conveying land in another part of the city which was within the old picket lines, where presumptively the old possessions would be preserved in their substance. This Court has no judicial knowledge of the contents of plats or of the location of Detroit lands, except as identified or affected by legislative or other public action, and there can be no presumption against the lawful character of the conveyances of the Governor and Judges. It was held in People v. Jones 6 Mich. 176, that there was nothing in the action of the Governor and J udgos in platting various parts of the city to prevent them from changing the plan, as they frequently did in places, or dealing with parcels of property, unless in violation of some established and vested rights which were beyond their reach. It appears affirmatively that no action was ever had during the existence of the territory to fix any public easement in any portion of this grant which would prevent them from disposing of it, as they did dispose of it, for the use of this corporation. And in Hinchman v. Detroit 9 Mich. 103, the power of the city, of Detroit, conferred by its charter, to vacate public grounds was' held applicable to one of the public squares laid out by the Governor and Judges, and not exempted as some other of those grounds have been-from city interference. And in Cooper v. Detroit 42 Mich. 584, where the city vacated part of a street in this same vicinity and used it for proprietary purposes, it was held such use was an adverse possession against any public rights and protected by lapse of time against resumption.
Assuming (what, as already shown, does not appear in any distinct way in the bill) that the interior triangle covers part of the land in controversy in this suit, it further appears that in 1837 the city of Detroit desired to change this part of the plan of the section by running Congress street and Randolph street so as to make a quadrangular block, which required the appropriation of a large part of the lots desig nated in the grant as conveyed, which would convert into public streets an amount of their undisputed private property equivalent to a large part, if not to all, of the space of the interior triangle, and leaving a considerable number of fractional lots which, as separate parcels, would be made inconvenient and of reduced value. To make this improvement the city exchanged conveyances, taking deeds from the church of the land in the new streets, and conveying to the church unconditionally the interior triangle. It is claimed, however, that at this time the city had no title to convey.
But by the act of the Governor and Judges designating these interior spaces for public uses, it was declared that it should be for such purposes of utility or ornament as the city council of Detroit should at any time provide. 1 Ten’. Laws, 288. Whatever power the Governor and Judges may have had on the subject, the public uses, except as otherwise designated, were city uses, and for the city’s benefit or convenience. By the charter of 1824 the city was given very general power in regard to opening and changing streets, and in 1827 it was expressly authorized to alter that part of the plan of the city lying north of Larned street, both east and west of Woodward avenue,.so as to make the streets run parallel to, or at right angles with, Woodward avenue, (which crosses Larned street at right angles,) and to exchange lots with the owners of property affected so as to give them an equivalent. 2 Terr. Laws 344. This is the authority under which Congress and ^Randolph streets were laid out over the church property, and it was under this that the deeds were exchanged. The city clearly meant to bind itself, and did so for an equivalent; and would be estopped from disputing it. In 1842 Congress gave to the city the full legal title to all the lands which had been covered by the old system, with some exceptions which indicate that the government intended to give the city entire title and control of all that lay within the plan, and also gave it the same power which had during the territory belonged to the Governor and Judges. 5 U. S. Laws, 541. Whatever title was then not vested in the church became vested in the city, which does not appear to have attempted to repudi ate its conveyance of 1834, or to have claimed any adverse rights. After a lapse of nearly forty years we do not think that the case requires any attention to be paid to this supposed shadowy possibility in determining the controversy before us. It is not, so far as we are now informed, a question involving the doctrine of ultra vires. The corporation of the church claims a title, and may sell it. As it has here been sold by quit-claim, the sale involves no corporate liability in case the title is less complete than, for anything we can perceive, it seems to be, and there can be no complaint of such a risk.
If then, the corporation had an interest which could be sold, it puts the case, so far as this complainant is concerned, on a footing which would cut him off from some of the complaints which he makes, even if well founded. But there is another feature of this matter of title which cannot be overlooked. The bill shows that in 1876 the corporation of which complainant was then a trustee, supposing it either necessary or desirable to obtain a license from the circuit court to sell the land, proceeded and obtained such license. The bill, in an indirect way, seems to suggest there was some irregularity in it, but nothing is so alleged as to show it, and as complainant must be assumed, from what appears in the bill, to have approved this action, it hardly lies in his mouth now to object to this sale on any ground that attacks the right of the corporation to sell; whether under its plain corporate powers under the Act of 1807, or under the license, if it was thought best to seek that for any supposed reason of policy.
This narrows the case to the inquiry whether complainant has shown any such misconduct as the court of equity can deal with, and whether the complainant has put himself in a position to seek interference.
The bill is claimed to have been filed under the chapter of the Compiled Laws relating to the jurisdiction of equity over corporations, as amended in 1879, so as to allow single trustees to intervene. Comp. L. § 6564; Pub. Acts 1879, p. 194; [How. Stat. § 8152]. It is sufficient to say that the same chapter excludes any proceedings under it in the case of religious. incorporations as well as some others involving -no commercial. purpose. § 6585 [§ 8173]. It was chiefly, if not solely, designed to protect business corporations having stockholders with pecuniary interests involved in its management.
In the absence of a statute it is well settled, and has always been recognized law, that courts of equity can never interfere with the action of such officers as have been placed by the corporation itself in the control of its affairs, unless either in excess of their discretion or in aggravated cases of misconduct amounting to actual or constructive fraud. In our opinion this bill does not make out such a ease. The inferences which we are asked to draw are that the sale was made really by Mr. Anciaux, the rector, and that the trustees who acted with him did so under his clerical influence, and also that the action was surreptitious and not had at a meeting where all could be heard. It is also claimed that Gregory Oampau is not a lawful trustee, because he resides out of the parish. There is also a general allegation of conspiracy, which is as vague in itself as the general combination clause,, and amounts to nothing, except so far as it may be supported by the other charges of supposed illegality.
So far as Gregory Campau is concerned, he is not only an officer de facto, who has not been replaced, but the ground of his alleged incapacity does not appear to have support either in sufficient allegations of fact or grounds of law. It is evident from the Act of 1807 that this church was supposed to have an existence involving no necessary territorial limits of parochial membership, and it m-ust at least be assumed that when the ancient trustees, constituting the electing body, choose a trustee, they determine that he is in fact eligible. "We do not think his official authority can be questioned in this indirect way.
It is certain that Mr. Anciaux has no more authority than any one else, and that no trustee could properly govern his own action by anything but his own uninfluenced sense of duty. But by the charter the action of the rector and two-trustees is put on as good a footing as the action of three trustees, and binds the corporation where that would bind it, and the bill contains no such averments of fact as make out any case of ecclesiastical duress.
The bill is not fairly drawn so as to present any distinct allegation of irregularity, and none can legitimately be inferred from it. Attention has already been called to its almost uniform failure to state the real facts from which alone a court has a right to deduce misconduct. Complainant, being a trustee, had legal right of access to the books and legal means to enforce it if denied him. He does not deny either access or knowledge. What he says is that he has never been advised of any meeting of the trustees called for the purpose of considering the contract, or at which the contract was considered when all of said trustees or a majority of them were present, and that he himself was not present when said contract was in any way considered. If he had stated what actually occurred, and under what circumstances the contract was adopted, as he could and should have done, its authenticity would have been placed within easier reach of determination. But all that is averred is perfectly consistent with a regular meeting when a quorum was present, and when the contract was approved by the rector and two trustees, and taking all that the bill sets out elsewhere, it indicates pretty clearly that such was the fact. It is enough now that it does not appear that such was not the fact.
There is a further feature of this case which is very significant in its bearing on the propriety of equitable interference. It appears that complainant himself was not opposed to a sale in general so much as he was opposed to this sale, and that he was early informed of the pendency of the dealings with Caplis, and gave notice of two other offers, — one of Capt. Pridgeon, for the same parcel, sold at the same price of $100,000 in cash, while the Caplis sale was partially on time; and one of Mr. Sheley, of' $200,000, for the south half of the entire quadrangle, which the bill states was a smaller portion than that sold to Caplis. We cannot say whether Sheley’s offer was or was not better than the others, for it is quite possible that the whole Larned-street front may be the chief value of the tract; and it is also possible that such a sale would interfere with the continuance of the church occupation. Neither can we say that a sale for cash is necessarily better than a sale on credit, secured, on good terms of interest, if the corporation has no immediate occasion to expend the money. Neither is there any principle which should invalidate a sale to a purchaser because brokerage was paid to one agent while another person was willing to act without. All of these things might or might not bear on fraud, if fraud was made out by any distinct allegations. But the rule is a just and safe" one, that fraud must be consistently and promptly acted on. Here, if complainant really believed his colleagues were violating their duty and defrauding the church, he was bound at once to stay them in their attempt before it was consummated, if possible, and at any rate to intervene so as to prevent any danger of loss to the purchaser. Here he suffered the contract to be completed, and the deed to be given, and the whole arrangements on both sides to be completed, in March, 1880. He did not file his bill until August 17, 1882, when Gov. Bagley had bought of Caplis, and had died, leaving his estate in the hands of his executors and devisees. The bill filed at that late date was not sworn to, so that no injunction was asked or attainable until the final hearing, when complainant himself might have ceased to be a trustee, and no attempt was made to stay future mischief. Whether this is a bill which would be demurrable for want of an oath, is not very material. It is certain that a trustee cannot get out an immediate injunction against his co-trustees on an unsworn bill, and that there can be no equity in his favor unless he does what he can to restrain them speedily. The delay in this ease is in no way excused or explained.
We have referred to the merits, because, after this lapse of time, there could be no propriety in treating these defects as mere slips and open to amendment. A further and incurable defect is that the only prayer of the bill is for a cancellation of the bargain, which not only concerns the corporation as the only party injured, but could not be granted without a repayment of money and release of securities, as well as proper allowances for what may have been done by the purchasers in reliance on their title. The corporation should have been a party complainant or a party to the record, at any rate, and neither of these conditions has been shown. As the case stands it has no foundation on any theory.
The decree must be affirmed with costs.
The other Justices concurred. | [
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Reid, J.
Plaintiff who was an employee of defendant Lloyds Builders Inc., appeals on leave granted and in the nature of certiorari from an order of the workmen’s compensation commission dated August 17, 1954, “That the award of the deputy commissioner be and it is hereby modified and that the plaintiff shall be paid by the defendants, compensation for total disability of $21 per week from January 15, 1948 to January 31, 1948 and from December 13, 1948 to January 11, 1949 and for the specific loss of the right eye at the rate of $26 per week from July 29, 1952 until further order of the commission, but not to exceed 150 weeks from May 9, 1951, defendants to have credit for compensation voluntarily paid.”
Defendant employer states as the sole question involved the following: Should the claim of plaintiff for compensation be denied for failure to give notice to the employer required by part 2, § 15 of the workmen’s compensation act? Defendant says it should be denied.
Plaintiff was employed as a carpenter by Lloyds Builders Inc., defendant. On January 14, 1948, while working at his employment, he was pulling a nail backwards when a piece of nail broke off, striking him in the right eye. Plaintiff seasonably notified his employer of his injury. After considerable treatment the foreign body was surgically removed from his eye at the University hospital at Ann Arbor. He was paid weekly disability workmen’s compensation at the rate of $26 a week from January 15, 1948 to January 31, 1948, and, also, from December 13, 1948 to January 11, 1949. Subsequently difficulty developed in the right eye in 1951 for which he was treated by doctors, which resulted in loss of vision in the said right eye, May 9, 1951.
Plaintiff filed application for hearing and adjustment of claim dated July 28, 1953, with the workmen’s compensation commission. Defendant Lloyds Builders Inc., claims it was not given notice of the loss of sight. The commission appropriately notified defendant of the hearing, in which hearing defendant Lloyds participated.
The facts as found on review by the workmen’s compensation commission are as follows:
“Plaintiff was paid compensation voluntarily from January 15, 1948 to January 31, 1948 and from December 13, 1948 to January 11, 1949 and we find the defendant was liable for the compensation paid during these periods.
“Since the petition filed by the plaintiff, dated July 28, 1953, is a petition for the payment of further compensation and we find the loss of vision in the right eye occurred on May 9, 1951, he is entitled to receive compensation at the rate of $26 per week from July 29, 1952 until the further order of the commission, but not to exceed 150 weeks from May 9, 1951. The award of the deputy commissioner is modified to conform with this opinion.”
Plaintiff claims compensation for total loss of right eye.
CL 1948, § 413.14 (Stat Ann 1950 Rev § 17.188), Is as follows:
“If payment of compensation is made (other than medical expenses) and an application for further compensation is later filed with the commission, no compensation shall be awarded by the commission for any period which is more than 1 year prior to the date of the filing of such application.”
CL 1948, § 412.15 (Stat Ann 1950 Rev § 17.165) {part 2, §15 of the act), contains the following:
“In all cases in which the employer has been given notice of the injury, or has notice or knowledge of the same within 3 months after the happening thereof, but the actual injury, disability or incapacity does not develop or make itself apparent within 6 months after the happening of the injury, but does develop and make itself apparent at some date subsequent to 6 months after the happening of the same, claim for compensation may be made within 3 months after the actual injury, disability or incapacity develops or makes itself apparent to the injured employee, but no such claim shall be valid or effectual for any purpose unless made within 2 years from the date the personal injury was sustained.”
Defendants state that part 2, § 15 of the act requires the employee to make his claim for compensation within 6 months after the accident or if no disability is apparent within 6 months, then within 3 months after the disability becomes apparent. Defendants further claim that no notice was given by the doctor of the loss of sight nor by the plaintiff, B. 0. Morgan, until a petition was filed with the workmen’s compensation commission, July 28, 1953, and that therefore no notice was given within the statute of limitations and that because of plaintiff’s failure to comply with the statute his claim for compensation is barred.
The accidental injury occurred January 14, 1948 but the total loss of the eye was on May 9, 1951, before which time defendant had notice of the accidental injury and had made a basic report in respect to the accidental injury filed February 5, 1948. The statute did not in the instant case require plaintiff to give defendant notice of the further development, the total loss of the eye.
In Palchak v. Murray Corporation of America, 318 Mich 482 (a case involving facts much like the-facts in the instant case), we say at pp 493, 494:
“The case at bar does not involve distinct injuries, sustained in an accident, but rather 2 results of a single injury. The department of labor and industry acquired jurisdiction of the case by virtue "of the-original proceedings taken before it. Such jurisdiction continued for the purpose of further proceedings for compensation as the development of conditions, brought about by the original injury,, might require. The statute in question did not impose on the plaintiff the duty of giving notice of such further development nor did it require plaintiff’s claim for further compensation based thereon to be presented within a prescribed period, as contended by defendant. The requirements in said section as to notice to the employer, and the limitations with respect to filing claims, did not apply.”
We find that the petition entitled, “application forbearing and adjustment of claim,” filed by the plaintiff, dated July 28, 1953, is not a petition for further compensation for loss of time or employment, but is a petition for loss of vision in the right eye. Without any deduction for the compensation heretofore paid for loss of time or employment, plaintiff is en titled to receive compensation for specific loss of eye, according to CL 1948, § 412.10 (Stat Ann 1947 Cum Snpp § 17.160), of $26 per week, for a total of 150 weeks from May 9, 1951. The case is remanded to the commission for amending its award to comply with, this decision. Costs to plaintiff.
Carr, C. J., and Butzel, Smith, Sharpe, Boyles, Dethmers, and Kelly, JJ., concurred. | [
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Sharpe, J.
This is a chancery action to set aside a deed dated February 23,1952, and recorded March 3, 1952, in the office of the register of deeds for Genesee county, Michigan.
The essential facts are as follows: Gust Boledovics, also known as Gus Boledovics, hereinafter referred to as Gust Boledovics, and Irene Boledovics were married in 1907. As a result of this marriage 4 children were born, namely, Steve Boledovics, also known as Stephen Boledovics, also known as Stephen P. Baldwin, Mary Horvath, Helen Himich and Rosie Bodnar. Mary Horvath died and left 2 children, Michael and Steve Horvath. In 1944 Gust Boledovics and his wife Irene purchased the property involved in this case. In July, 1951, Irene Boledovics died, and about 5 months later Gust Boledovics married Theresa Boledovics. Gust Boledovics and his wife Theresa are elderly people. Gust Boledovics is unable to understand, read or write the English language, and Theresa Boledovics has a limited understanding of the English language, but is unable to read or write in English. They are of Hungarian descent.
It appears that shortly after Gust Boledovics’ second marriage, he and his present wife discussed methods of disposing of their property when they were no longer here to use it. They concluded that the property should go to Gust Boledovics’ children and grandchildren. To effectuate this conclusion, they, in February, 1952, consulted a lawyer in Flint, Michigan. They were taken to the office of Miss Elza Papp, who also speaks Hungarian, and she discussed the problem with plaintiffs. They consulted with the lawyer on 3 separate occasions, and on February 23, 1952, a quitclaim deed was executed which contained the following:
“Know All Men By These Presents : That Gust Boledovics and Theresa Boledovics, his wife, convey and quitclaim to Helen Himich, Rosie Bodnar and Steve Boledovics, an undivided one-fourth (1/4) in terest, and the remaining one-fourth interest to Michael Horvath and Steve Horvath in equal shares, 1538 Montana avenue, Flint, Michigan, the following described premises situated in,the city of Flint, county of Genesee and State of Michigan, to-wit:
“Lot 458 Homedale Subdivision, according to the recorded plat thereof.
“Subject, however, to the grantors Gust Boledovics and Theresa Boledovics, reserving unto themselves life tenancies
“for the sum of One Hollar and other valuable consideration.”
On September 17, 1953, plaintiffs filed a bill of complaint in the circuit court of Genesee county in which the following allegations were made:
“Plaintiffs further show that at the insistence of the children of Gust Boledovics, also known as Gus Boledovics, one of the above-named plaintiffs, they were induced, on February 23, 1952, to make out what they thought was a will, which was prepared and executed by a local attorney, when, in fact, the same was a quitclaim deed granting title to said above-described real estate to the defendants herein, reserving to the plaintiffs herein a life interest, a copy of which quitclaim deed is attached hereto and made a part hereof.
“Plaintiffs further show that due to their inability to read the English language, or understand the same, they were induced by certain fraudulent representations made to them by said attorney and the defendants herein to execute the deed, believing at the time that they were executing a will.
“Plaintiffs further show that it has been only recently that they found out that they had in fact executed a deed to their property rather than a will, and have asked the defendants herein to reconvey the same to them, which has been refuséd.
“Plaintiffs further show that there was no consideration whatsoever for the execution of the said deed.”
Defendants filed an answer to the bill of complaint in which they deny the allegations above mentioned in plaintiffs’ bill of complaint, and further assert that it was the intention of plaintiffs that the defendants should be the owners of the real estate subject to a life interest in the plaintiffs.
The cause came on for trial, at which time both plaintiffs testified that they went to the lawyer’s office to have a will made out. Gust Boledovics, through an interpreter, testified:
“Q. Did she explain what they were?
“A. She just said they were wills, and that is what he wanted, he says. * * *
“Q. Ask him at the time he signed them whether or not he had to raise his right hand and swear that he executed them under his free act and deed.
“A. There was nothing said to him, just said that ‘You are making out a will.’ ”
Theresa Boledovics, through an interpreter, testified :
“Q. What did you think you were in Miss Papp’s office for?
“A. She said they were making out a will.”
At the conclusion of plaintiffs’ case, defendants’ attorney made a motion for judgment for defendants as follows:
“Mr. Ryan: If the Court please, I would move you at this time for a judgment for the defendants for the reason that no case has been made out. There certainly hasn’t been any fraud or undue influence on the part of these defendants, and the attorney who made it, drafted the papers, isn’t a party to the suit, and the suit is based upon fraud in the making of the deeds and they are made, on the face of them they are proper, properly witnessed; they have been signed. As I say, I don’t know, so far as any consideration is concerned, the court is aware of the Flood Case. I would move you for a judgment for the defendants.”
The trial court denied the motion, whereupon defendants called Miss Elza Papp as a witness. She testified:
“I had Mr. Nickson come in, and while Mr. Boledovics and his wife were there, and in the presence of my sister, Miss Papp, and Mr. Nickson, I had told them what they were doing. I says, ‘Now, this is a deed, and it has to be sworn under oath,’ and Mr. Nickson asked me to ask them, because he could not speak Hungarian, if this was what they wanted to do, and I don’t know the word for ‘free will,’ but in Hungarian I ask them if this is really what they wanted to do, in Hungarian, and if they were doing it without any pressure, and they said ‘yes’, and Mr. Nick-son said, ‘All right,’ and they proceeded to sign this in front of Mr. Nickson, my sister and myself, and when their signatures,—when his signature and her mark was put on, Mr. Nickson then signed it as notary. * * *
“A. Oh, yes, I had explained it to them before Mr. Nickson even came, I took each one of these deeds, and read them to them. In other words, I didn’t read them in English because I knew they wouldn’t understand. I took and I explained it to them in Hungarian that it was going from the 2 of them to me, covering this property, and I would deed it then back to them, and they in turn would deed it to the 4 children, as they wanted, each of them in equal shares, with the exception of the 2 grandchildren was to get the 1 share of the deceased’s daughter, and then I would take it down and have it recorded for them, if that is what they wanted. It was all explained to them.”
At the conclusion of all evidence, the trial court held that plaintiffs were entitled to a decree setting aside the quitclaim deed. In an opinion the trial •court stated:
“In this matter it is, of course, very apparent that the plaintiffs here are uncultured, not understanding-even the English language, neither can read or write, and the wife, Theresa, is unable to even sign her own name. They have no understanding of business transactions, and therefore all of their transactions must be carefully scrutinized, if it is against their interests. From the testimony given here it is understandable that they had no understanding of the exact import of the transactions they were entering-into, even though the attorney that drew up the deeds in question might have attempted to explain to them what the effect was. Primarily transactions of this kind usually end up in some form of discord when the parties begin to realize exactly what they have done.”
Defendants appeal and urge that the trial court was in error in setting- aside the deed.
It is to be noted that the trial court did not make a specific finding that defendants were guilty of fraud in securing the deed in question, but did find in effect that there was no meeting- of the minds on the transaction involved in this case. There is testimony on the part of defendants that plaintiffs understood they were signing a deed, and there is likewise testimony on the part of plaintiffs that they understood they were signing a will. At this stage of the case we have a disputed question of fact upon which the trial court made a finding. There is competent evidence to support the finding of fact of the trial court. It appears to us that this is a case where the trial court had the advantage of seeing- and hearing the witnesses and thereby had the advantage of appraising- the value of their testimony. Under these circumstances we shall accept the finding of fact of the trial court to the effect that plaintiffs thought they were signing- a will rather than executing a quitclaim deed.
In our opinion, decision in this case is controlled by McGrow v. Muma, 164 Mich 117. In that case a bill of complaint was filed to set aside and declare void 2 deeds of real estate which, a mother executed in favor of her daughter. The basis of the bill of complaint was that the mother, by reason of ill health and mental derangement, was wholly incompetent to transact any business. The trial court did not find the mother mentally incompetent on the day the purported deeds were executed, but the trial court did find as a fact that the mother never desired or intended to sign any paper except one which would leave both the title and use of the property in herself so long as she lived, and that she gave her assent to the instruments under misapprehension of their legal effect. The trial court set aside the conveyances, and in affirming his decree, we quoted with approval (pp 119, 120) from 2 Pomeroy’s Equity Jurisprudence (3d ed), §§ 843, 845, as follows:
“ ‘If an agreement or written instrument or other transaction expresses the thought and intention which the parties had at the time, and in the act of concluding it, no relief, affirmative or defensive, will be granted with respect to it upon the assumption that their thought and intention would have been different if they had not been mistaken as to the legal meaning and effect of the terms and provisions by which such intention is embodied or expressed, even though it should be incontestably proved that their intention would have been different if they had been correctly informed as to the law.’
“ ‘If, on the other hand, after making an agreement, in the process of reducing it to a written form, the instrument, by means of a mistake of law, fails to express the contract which the parties actually entered into, equity will interfere with the appropriate relief, either by way of defense to its enforcement, or by cancellation, or by reformation to the same extent as if the failure of the writing to express the real contract was caused by a mistake of fact. In this instance there is no mistake as to the legal import of the contract actually made; but the mistake of law prevents the real contract from being embodied in the written instrument.’”
In the case at bar we are satisfied that the trial court rightly concluded that plaintiffs did not intend to execute the deed in question, and that its effect was not understood by them.
The decree is affirmed, with costs.
Dethmers, C. J., and Smith, Reid, Boyles, Kelly, Carr, and Black, JJ., concurred.
See Flood v. Flood, 295 Mich 366.—Reporter. | [
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Dethmers, J.
Involved is a written contract by which plaintiff employed defendant Ashton as “consultant on problems in engineering, design and sales” in its business. Plaintiff agreed to pay Ashton “an expense account of $50 per week, which will be applied by him in good faith in relation to his work but for which he will not be required to give to the corporation a detailed accounting.” Plaintiff made the $50 weekly payments to Ashton for 2 years, to a total of $5,100. Plaintiff then contended that Ashton had not used the money for its benefit, as required by the contract, and brought this suit for an accounting and recovery of the amount not so used. An order of reference to a circuit court commissioner was made and testimony taken before him touching Ashton’s use of the $5,100 and the accounting thereof which plaintiff sought. The commissioner made findings of fact, conclusions of law, and a recommendation that plaintiff’s bill of complaint be dismissed. After plaintiff filed exceptions thereto and defendants moved to confirm and that a decree enter accordingly, a decree was entered dismissing the bill with prejudice. Plaintiff appeals.
Plaintiff’s first 2 contentions are that a decree dismissing the bill should not have been entered on the record made before the commissioner on the accounting issue only without a hearing before the court on the question of fraud and conspiracy alleged in its bill of complaint, and, second, that for that reason its motion for a rehearing should have been granted. The bill avers that plaintiff has evidence that defendants conspired to defraud plaintiff by not using the $5,100 for the purpose contemplated by the contract but for their own use. It fails to allege facts and circumstances constituting the claimed fraud and conspiracy. This amounts to no more than pleading a conclusion. It is not sufficient to entitle plaintiff to a hearing on the claim of fraud and conspiracy. McMahon v. Rooney, 93 Mich 390; Schwab v. Mabley, 47 Mich 572. Furthermore, inasmuch as a hearing thereon could have been productive of no other relief and the plaintiff did not pray for other relief than that to which a favorable conclusion of the accounting might have shown plaintiff to be entitled, no purpose could have been served by taking further testimony than that taken on the accounting before the commissioner. No error was committed in this respect.
The rest of plaintiff’s questions raised go to whether defendant Ashton accounted for all of the $5,100 paid to him as fully as required by the contract, whether he had the right to exercise his own discretion as to the uses to which the money might be put for plaintiff’s benefit, and whether he was entitled to use it for entertainment of plaintiff’s customers or prospects. We agree with the commissioner and the trial court that the answer should be in the affirmative. The contract specified that defendant Ashton was not required to give plaintiff a detailed accounting. His proofs, scarcely rebutted by plaintiff, were to the effect that he had spent the ■entire $5,100 on engineering supplies and for promoting sales for plaintiff’s benefit. In large measure his testimony in that respect was corroborated by other witnesses or documentary evidence. The provisions of the contract, its purpose, the nature of Ashton’s work, and the testimony of plaintiff’s president that.other moneys had been expended with his approval for the entertainment of customers ■convince us that the uses to which Ashton put the money were not improper, but consistent with the ■spirit and intent of the contract.
Plaintiff urges that the decree should have required the return by defendants to plaintiff of certain property. It consisted of boats, an outboard motor, trailer, et cetera, which had been used by defendants for entertaining plaintiff’s customers and prospects. The unrefuted testimony of defendants was that the property was not in their possession and their counsel announced at the hearing that plaintiff was welcome to take possession thereof at the place where located for the use of plaintiff’s customers; counsel for plaintiff replied that plaintiff did not want the property. Under such circumstances there was no occasion for a decree requiring ■delivery of the property by defendants to plaintiff.
Affirmed. No costs, defendants having filed no brief.
Carr, C. J., and Butzel, Smith, Sharpe, Boyles, Beid, and Kelly, JJ., concurred. | [
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Campbell, J.
This case presents two questions — one upon a challenge to the array, based on the supposed illegality of the Wayne county jury commission ; and the other upon the refusal of the court to continue the ease on the ground of absence of a witness. The charge was larceny from the person.
The crime was alleged to have been committed August 21, 1883. The prisoner was arraigned Sept. 4, 1883, and put on trial on the 7th. The record does not show when he was examined, but it shows he was at once arrested and confined in jail, and that, having no money or counsel, he was unable to make any preparation for his defense; that on the day of his arraignment prisoner’s friends retained Mr. Hawley as his counsel. The affidavit for continuance shows that the respondent has fully and fairly stated to his counsel what he expected to prove by John Morgan, and was advised that Morgan was a material and necessary witness, without whose testimony he could not safely proceed to trial, and that he had a good defense on the merits ; that Morgan lives in Hamilton, Ontario, and respondent could not procure Ms personal attendance at the then present term, but could get his presence or deposition for the next term.
The court refused the continuance, stating ,two reasons : first, that the affidavit did not conform to the rule [Circ. Ct. Hule 55]j in not stating what was expected to be proved by the witness; and second, that the complaining witness was a non-resident who had come voluntarily to testify and could only be retained by putting him under recognizance.
It does not strike us that the convenience of a prosecuting witness should govern in crowding a respondent to a speedy trial without preparation. And where, upon the face of the record, it is manifest, as it is here, that defendant has actually had no time for preparation, we cannot but doubt whether some further time should not have been given to obtain testimony. Had respondent made a second affidavit showing distinctly the importance of Morgan’s testimony, there is strong reason for holding that the action of the court cut him off from a constitutional right. There are several authorities, however, which hold that the respondent may be called on to show what he expects to prove, and without deciding whether this can always be required, we are not prepared to say that it is error to require it unless respondent gives some adequate reason why he should not be compelled to disclose Ms defense. On the whole we are not prepared to say this was a fatal error.
The other point is governed by the opinions in other cases filed at this term. See People v. Harding ante, p. 48.
The conviction was proper and must be sustained.
The other Justices concurred. | [
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Boyles, J.
Plaintiff appeals from a decree dismissing her bill of complaint for divorce. The only question here for decision is whether her testimony establishes grounds for divorce. Her bill of éomplaint charges the defendant with extreme crhelty, alleges that he had an ungovernable temper, unreasonable fits of jealousy, that he derided and insulted her in the presence of others, accused heir' o| improper conduct, and had struck her. She claims;particularly that on 3 different occasions he had struck and slapped her. ' '. ,
The defendant filed a cross bill which the court likewise dismissed. The defendant does not brossappeal.
The case was heard in open court. The,.2 parties were the only witnesses sworn. Each was represented by counsel. Their testimony is in the recbrd. She testified, in part:
“I separated from my husband on March 28,1952. I left him. We were living at 18073 Westphalia, the family home. I had been living there with my husband, the children, and my husband’s mother.
“I left him because he struck me, on more than 1 occasion, on several occasions. The last time he struck me was in February, about 6 or 7 : weeks before I left. * *! *
“That was the day that he was supposed to have had off, and he was called in to work unexpectedly, which he didn’t like very well. It was for' evening-work until about midnight. I was asked in the meantime to go up .to my church and help out on a. dinner, and I went. I notice in the morning a very cool indifference. I tried to patch that up, cover it up, not showing that I noticed it. * * * We both finished breakfast — and I went about doing my dishes and getting started on the day’s work. Eventually he came over beside me expressing his displeasure. He started telling me how I was having a good time while he was away working, about me being a social butterfly and having a good time while he was away at work, which wasn’t the case. Well, I was just so dumbfounded because I didn’t think that was what was bothering him.
“Q. Did he do anything?
“A. There were a few words between both of us and he- slapped my face.
, “Q. Is that the only time your husband struck you?
“A. No; it happened several times.
“Q. Did you ever say or do anything to cause him to strike you?
"A. No.
“Q. Well, can you tell us another circumstance under which he struck you?”
She answered that on another occasion on their way home in their car from a dance, he claimed that .•some fellow with whom she had been dancing “didn’t take his arm down soon enough,” that “he made other accusations which I denied and with that he turned around and slapped me right across the face and left marks on my face.” She testified further to 2 other occasions when he used physical violence against her:
“One time I will never forget. I was in the basement washing clothes. I can’t recall what the discussion was but he picked up the alarm clock that was setting on the stairway there and threw it at me, just missing my head; but he wasn’t satisfied. He came and grabbed a hold of my throat and held me there until I begged him to free me. * * * Ah- other occasion. I was sitting at the table, at the dinette, mending or doing something that had to be done. It was time for him to leave and I hadn’t packed his sandwich yet, so he came ont there and said, ‘Would you get my sandwich ready?’ I guess I didn’t jump quick enough or move fast enough. He pulled the chair right out from under me and dropped me right on the floor, on which I could have injured my back.”
The defendant himself admitted:
“Q. Did you ever strike your wife?
“A. I slapped her.
“Q. On how many occasions?
“A. 3 times.
“Q. Could you enumerate those occasions'? Place them in time ?
“A. Oh, about February, 1952.
“Q. And what was that occasion?
“A. It was a discussion about the way she was dancing with some people, at the Campus Ballroom.
“Q. Where did the striking occur?
“A. We were parked at the curb; the argument waxed pretty tense and I slapped her.”
There is no need to refer to other testimony in the record which suffices to establish extreme cruelty, in addition to the defendant’s admitted and'unjustified acts of physical violence. Plaintiff’s right to a divorce has been clearly established.
The trial judge, in dismissing plaintiff’s bill for divorce, referred to the fact that there was no other testimony to support that of either of the parties, they being the only witnesses to testify. Deferring to the plaintiff’s testimony and a necessity for corroborating proof, the court said:
“We cannot come to the question of disposition of the property, real or personal, of the parties to this litigation until we determine whether, on this record as now constituted, there is any supporting proof offered by the plaintiff to support her contention in her bill of complaint, or supporting proof by' the defendant and cross plaintiff to support his complaints against the plaintiff.
“It leaves the court in just this situation. Without this substantiating proof of the allegations by the plaintiff in her bill of complaint against the defendant and cross plaintiff — not being supported to the degree requiring that she make out her case against the defendant and cross plaintiff by a preponderance of the evidence — and the same situation applying to the defendant and cross plaintiff, he not having made out his case against the plaintiff and cross defendant by a preponderance of the evidence, the court, realizing that it must have this testimony presented, in support of either the bill or the cross bill, to support the contention of the party who desires to prevail, and the record being silent in this respect, it follows that both the bill and the cross bill be, and the same are, hereby dismissed without cost to either party.”
We do not agree that this is sufficient reason for denying the plaintiff a divorce. A contested decree of divorce may be granted solely on the testimony of one of the parties when taken in open court. Rosecrance v. Rosecrance, 127 Mich 322; Murphy v. Murphy, 150 Mich 97; Brookhouse v. Brookhouse, 286 Mich 151; Gilchrist v. Gilchrist, 333 Mich-275.
A decree granting the plaintiff an absolute divorce may be' entered in this Court.
In her bill of complaint and in the proofs, the plaintiff shows that 4 of their 5 children are now over 17 years of age — the oldest is about 28, and the youngest was 11 years old January 28, 1955. Both parties, in their bill of complaint and cross bill, ask for custody of the minor children. No proofs were taken or conclusion announced by the court referring especially to custody. As to property matters, a report filed by the friend of the . court, based on testimony of the parties taken before him on a reference, lists the property of the parties as amounting to about $20,000, and recommends the division of the property. Insofar as the record here shows, no testimony as to property matters was taken before the court. . ..
Under the circumstances, after the trial judge had announced his decision to dismiss both the bill of complaint and'the cross bill, there-was no occasion then for the court to decide questions of custody or property matters. Consequently, the decree entered here will provide for remand to the trial court to take testimony, if necessary, and enter a supplemental decree for custody and property settlement.
Reversed and remanded. Costs to appellant.
Carr, C. J., and Butzel, Smith, Sharpe, Reid, Dethmers, and Kelly, JJ., concurred. | [
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Doyles, J.
John A. Koch, an electrical worker, sustained fatal injuries while working on a construe-^ tion job at the plant of the defendant Production Steel Company in Wayne county. Koch was an employee of . the Jack Frost Electric Company, the contractor doing the electrical work on the construction job. The administrator of1 his estate brought the instant suit against the Production Steel Company and one. of its employees, Lesley LeRoy Touchstone, alleging that the death of the decedent was caused by the negligence of the defendant company and its said employee. At the close of the proofs on jury trial both .defendants moved for a directed verdict .of no cause for action on the ground that the plaintiff had’ failed, to establish any actionable negligence on the part of either, of them which was 'a proximate ca,.use of the decedent’s fatal injuries, and the court reserved decision on the motions. The jury-returned a verdict of $15,728 for the plaintiff. After the jury’s verdict the plaintiff moved for entry of judgment on the verdict, and the defendants moved for entry of judgment of no cause for action. The trial court granted the defendants’ motions and entered a judgment for both defendants, non obstante veredicto, from which the plaintiff appeals.
Defendant Production Steel Company operated a steel plant in Wayne county and had under construction a new plant which was rectangular in shape, over 500 feet long. The Jack Frost Electric Company was the contractor doing the electrical work for the new plant. Plaintiff’s decedent, John A. Koch, was employed by the electric company. The plant under construction had in it 3 craneways, each of which ran the full length of the building in an east and west direction. There was a north, a center, and a south craneway, in each of which was installed 2 cranes so that the bridge of each crane could travel in an east or west direction. The bridge of each ■crane carried a “trolley” which could move either in a north or south direction and on each trolley was a cable with hook attached to pick up material, which ■could be vertically raised or lowered. The bridge of each crane was approximately 30 feet above the floor of the building, with a cab underneath in which the operator of the crane was installed.
We are here concerned only with the south crane-way, which will be referred to as craneway A, and the center one which will be referred to as craneway B. The west crane in craneway A will be referred to as #1, the west crane in craneway B as #2, and the east crane in craneway B as #3. At the north ■end of crane #1 and suspended below the crane was the small cab in which were installed the control mechanisms. Defendant Touchstone, the operator of the crane, was stationed in this cab.
On the day of the injury (April 4, 1949), defendant Touchstone arrived at his place of employment about 7:30 a. m. The crew he worked with was there, the usual starting time being 7 a. m. On this particular day they could not start until 8 a. m. because there was no power to the crane. Touchstone testified that in order to have the electricity turned on he had to go to Mr. Alexander (since deceased), the superintendent for Jack Frost- Electric Company, who had sole control over the power to operate the cranes, and request that power be turned on ; and that Alexander would then do so if he thought it proper. This arrangement had been made at a conference a week or two prior to the accident and was considered necessary because the electricians were still working part of the time in and around craneway A, as well as in other parts of the building. The persons present at said conference, in addition to Alexander, were the president of Production Steel, the acting superintendent, the maintenance foreman for Production Steel, the defendant Touchstone, and Daniel Lamet who was in charge of construction. Touchstone further testified that whenever he commenced work with the crane he gave a blast of about 30 seconds’ duration on the warning horn or signal device of the crane; that he did not later sound the warning again. Touchstone and other employees testified that it was not the practice in that plant to sound the warning signal with every movement of the crane. The reason given was that such practice would result in it being sounded so often that everyone would ignore it.
The accident happened at approximately 9 a. m. The crane involved here had then been in continuous operation and many movements had been made back and forth. The “trolley” and the “hook” were also in continuous operation. One truck, which was at the far west end of the building, had been loaded with coils of steel, and a second was in the process of being loaded. At the time when plaintiff’s decedent was injured the crane bad been operating continuously for about an hour. The decedent was back •of the crane, above and behind the cab of Touchstone, the crane operator, and out of his sight, when he started the movement of the crane which caused the accident. The crane had moved only about 4 feet after being started by Touchstone when it apparently contacted plaintiff’s decedent, who was apparently behind the crane, above and behind the cab in which Touchstone was starting the crane, and not within the sight of Touchstone who was on a lower level.
Suspended from the crane were the cables and the hook which from time to time had a very heavy load attached. Moving this hook and its bundles of steel endangered the workmen on the plant floor, and this required the operator to give it almost undivided attention. It was left to Jack Frost Electric Company, or its superintendent in charge of power, to .give notice to the defendants of the intention of an electrical construction worker to enter the area where the power was on and the crane was in operation.
A witness for the plaintiff testified that he was employed as a journeyman electrician and that he was installing night lighting at the time; that the ■decedent was his helper or apprentice. Some wire had been left on crane #2 and was needed to continue the work. He sent decedent, who was a crane 'Operator, for the wire, instructing him to go to crane #3 via a ladder in craneway B and operate that ■crane over to #2, get the wire, return to crane -#3, and otherwise return the way he had gone. He was instructed to proceed in this manner because á ■crane was then operating in craneway A. Decedent was last seen ascending the ladder. At each crane, running parallel with..the craneways, was a rail affixed to the upper surface of an H-beam. The various cranes moved east and west on these rails. No one actually saw the accident occur. It appears that the decedent moved #3 crane over to #2, left the cab of that crane via a ladder from the cab to the top of the crane, from there he apparently walked on or between the H-beams supporting the south rail of -J£2 and #3 crane and the north rail of crane #1 until he came to a vertical column, that he passed this vertical column on the south side apparently because crane #2 was stopped so that its southernmost structural members were adjacent to the vertical column which he had to pass and which extended over its rail for the width of the end of the crane. Apparently decedent intended to go to the far west side of crane #2 and then climb upon it. While Touchstone was returning to the east with crane #1 he heard decedent scream, applied his brakes, reversed his crane and moved to the west a short distance. Decedent was found between the. H-beams which supported the rails, facing west, after the accident, and died several hours later.
Defendant Touchstone testified that while he was operating the crane he kept his eyes upon the hook or the load attached thereto, except to glance quickly in the direction of movement to see if the way was clear, because there were men on the floor of the plant who might otherwise be struck, and there were bundles and coils of steel which might accidentally be hooked or knocked over so as to endanger other persons.
Plaintiff asserts negligence because defendant Touchstone had an injured and partially-bandaged hand at the time, and because there was testimony that both hands were required to properly operate the crane. However, there was no showing that the bandaged hand interfered in any way with his oper ating ability, or that it had a causal connection with the accident.
Plaintiff also contends that it was error for the trial court to admit Touchstone’s testimony of the agreement between Alexander, the superintendent for decedent’s employer, and Production Steel as to the manner and conditions under which power might be turned on and the cranes operated, claiming that this is hearsay, relying on City of Grand Rapids v. Coit, 149 Mich 668; and Colgrove v. Goodyear, 325 Mich 127 (10 ALR2d 1029). However, it was not objected to on the ground that it was equally within the knowledge of the deceased.
The testimony of the arrangement made with Alexander was not hearsay. The arrangement was an essential and relevant element in the case. The testimony was admissible.
“The theory of the hearsay rule is that, when a human utterance is offered as evidence of the truth of the fact asserted in it, the credit of the assertor becomes the basis of our inference, and therefore the assertion can be received only when made upon the stand, subject to the test of cross-examination. If, therefore, an extrajudicial utterance is offered, not as an assertion to evidence the matter asserted, but without reference to the truth of the matter asserted, the hearsay rule does not apply. The utterance is then merely not obnoxious to that rule. It may or may not be received, according as it has any relevancy in the case; but if it is not received, this is in no way due to the hearsay rule.” 6 Wigmore on Evidence (3d ed), pp 177, 178.
Inasmuch as the defendant Production Steel Company was required to have the power to the crane turned on only by the supervisor of Jack Frost Electric Company, the decedent’s employer, and because this arrangement was made with their employer for tlie protection of the electricians then working in the building, the duty that the defendants owed to the electricians employed by Jack Frost Electric Company had thus been fulfilled.
We conclude that granting the motions of the defendants for judgment non obstante veredicto was proper under the circumstances of the case. Viewing the testimony in the light most favorable to the plaintiff, there was an absence of proof that the defendants were guilty of any breach of duty or negligence which was a proximate cause of decedent’s injury. Consequently, it is not necessary to discuss the additional ground on which the defendants deny liability, namely, that plaintiff’s decedent was guilty of contributory negligence. Nor do we find any proof to justify plaintiff’s claim of gross or subsequent negligence.
Affirmed.
Carr, C. J., and Butzel, Smith, Sharpe, Reid, Dethmers, and Kelly, JJ., concurred.
See CL 1948, § 617.65 (Stat Ann § 27.914).—Reporter. | [
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Sherwood, J.
Ejectment to recover forty acres of land lying in the county of Gratiot. Plea, general issue, with claim for improvements, and with request that value of premises be found without the improvements, and whether the premises had been peacefully occupied by defendant and his grantors, and if so, how long; and the increased value-of the premises by reason of the improvement.
The defendant claims to derive title to the land under and by virtue of a deed obtained from Mary McCartney while an infant under the age of sixteen years.
The cause was tried by Hon. Henry Hart, circuit judge, without a jury, who, at the request of counsel for defendant, made special findings of the facts and the law. The plaintiff had judgment for the premises, and the defendant was allowed twenty-five dollars for his improvements. The case-now comes before us on error upon the findings of the circuit judge.
From such findings it appears that the land in question was entered by Nichard M. Daniels, and by regular transfer,, shown by proper conveyances, the title was conveyed to the minor, Mary McCartney, March 9,1876. She then conveyed to Chapman; Chapman to Bull; Bull to Corey ; and Corey to Bennett, the defendant. Mary McCartney became of age in November, 1881, and on the 17th day of May following she conveyed the premises to the plaintiff’s grantor. It further- appears that the land has been continuously occupied by the defendant and his grantors since 1S54; that Miss McCartney at, and for several years immediately prior to, the defendant’s purchase, resided out of the county and had not seen the lands for three or four years; that no possession of the premises was ever demanded or notice to quit given before suit brought; that Mrs. Taft (Miss McCartney’s name after marriage) never gave any notice or did anything to revoke her first deed, except the making of the conveyance to plaintiff’s grantors; that the defendant has peaceably occupied and. possessed the premises in question as a part of his farm from the time of his purchase un til the commencement of this suit; and that the improvements he has made increased the value of the land twenty-five dollars.
Upon'these facts the circuit judge held as matter of law that the giving and recording of the deed to plaintiff’s grantors after Mrs. Taft became of age, at the time she did it, was a good revocation of her first deed, and without other or further act or acts entitled the plaintiff to bring this suit against her first grantee in possession, and that defendant could recover the twenty-five dollars for improvements. We think the finding was correct, and we see no error in the record as presented.
The deed of an infant is voidable, and must be avoided before the action will lie; but when properly avoided no other thing is necessary to be done before bringing suit. The necessity for the infant to make entry before giving the deed of avoidance, or before bringing suit, does not exist in this State. Title by descent, and our mode of transferring title by deed, are regulated by statute. The old common-law doctrine of feoffment with livery of seizin does not constitute any part of our law of conveyancing. Our registry laws supply their place, and furnish the notoriety of transfer intended to be given by that ancient mode of passing title; and the making and recording of the second deed in this case was entirely sufficient. How. St. ch. 216; §§ 5652, 5657; 1 Pars.. Cont. (3d ed.) pp. 373, 374; Eagle Fire Co. v. Lent 6 Paige 635; Cresinger v. Welch 15 Ohio 192; Jackson v. Carpenter 11 Johns. 539; Jackson v. Burchin 11 Johns. 124; Hoyle v. Stowe 2 Dev. & B. Law 320; Tucker v. Moreland 10 Pet. 58; Bingham on Infancy 60; Dixon v. Merritt 21 Miun. 196; McGan v. Marshall 7 Humph. 121; Peterson v. Laik 21 Mo. 541; Drake v. Ramsay 5 Ohio 252; Hastings v. Dollarhide 24 Cal. 195; Pitcher v. Laycock 7 Ind. 398; Laws 1881 p. 385; Crane v. Reeder 21 Mich. 82; Prout v. Wiley 28 Mich. 164.
This record fails to’ show any equities existing which required action on the part of the minor after she arrived at age, or her grantee, to make notice necessary before bringing suit. We find nothing in the case showing the plaintiff in any way estopped from bringing his suit.
There is no statement or finding, or request to find, the value of the premises when purchased by defendant, or the price he paid for the same, if anything; but for the improvements made he is allowed twenty-five dollars.
There may be cases at law where the court, for the purpose of protecting the rights of innocent bona fide purchasers, will hold the infant estopped from bringing suit; and others, of extreme hardship to the innocent purchaser, where courts of equity will not allow his title to be disturbed, when the court can see that the interests of the minor have not been prejudiced. But the defense in this case rests upon no such state of facts or equities, and we think the finding of the circuit judge supports the judgment he rendered in the case, which must be
Affirmed.
The other Justices concurred. | [
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Cooley, C. J.
The plaintiff brought suit for an assault and battery, and for a taking from, her of a buggy and converting the same to the use of the intestate. The assault and the conversion were set out in a single count, in a statutory action on the case. The plaintiff recovered a judgment for seventy-five dollars and twenty-seven cents, and the court awarded judgment to the defendant for costs, on the ground that the plaintiffs recovery for the assault was less than fifty dollars.
We do not see how the court could say this. There was no separate finding by the jury upon the value of the buggy, and the evidence respecting it varied from quite a small sum up to seventy-five dollars. It was shown that the defendant sold it for eighteen dollars, and it is quite possible the jury may have considered this the whole value. If it be conceded, therefore, that the jury included the value of the buggy in their verdict, — which we cannot be certain was the case, — it is still uncertain whether the award for the personal injury was loss than fifty dollars. The plaintiff should, therefore, have had .judgment for costs. It will be ordered accordingly. *
The other Justices concurred. | [
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Champlin, J.
The plaintiff is a banker, residing at Union-ville, Michigan, and brought suit against the defendant upon a note sent originally to him for collection from a bank in Detroit, and which he failed to protest, and on account thereof forwarded the money to the bank in Detroit, and brought suit in his own name against defendant as maker.' The note was indorsed by the payees in blank. The defendant claimed that he was not liable upon the note — -first, because the plaintiff never had any title to the same; and second, because there never was any authority given to Frank Stiner to sign defendant’s name to the note.
There was testimony introduced before the jury upon these issues, and the questions of fact were found by the jury adversely to the defendant’s positions.
The charge of the court was lucid, and clearly stated the propositions of law arising in the case.
There is no error in the record and
The judgment is affirmed.
The other Justices concurred. | [
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Sharpe, J.
(dissenting). Defendant, Willie B. Moore, upon Ms plea of guilty to an information charging the crime of murder, was sentenced to life imprisonment. The record shows that on the afternoon of October 26, 1938, Josie Zeedyke was murdered in Kalamazoo, Michigan. Defendant was arrested in the late afternoon of the same day. He was questioned by numerous public officials on the night of his arrest until approximately 2 or 3 o’clock in the morning of the following day. On October 27, 1938, he was questioned from approximately 8 o’clock a.m. until 10 or 11 o’clock p.m. On October 28, 1938, he was again subject to questioning from approximately 8 o’clock a. m. until about noon, and again questioned in the afternoon when he confessed to the crime charged. He was then taken before the municipal justice court where he waived examination and was bound over to the circuit court for trial. On October 29,1938, defendant was arraigned, pleaded guilty, and was sentenced to Southern Michigan Prison at Jackson for life.
No record was made of the proceedings in the circuit court at the time of the arraignment and plea, but evidence was taken to determine the degree of murder. During the day of arraignment the circuit judge directed that defendant be taken to the judge’s private chambers, and upon their return to the court room the judge stated:
“In a private interview with him (the respondent) in my chambers he discussed the whole affair very freely with me in all its revolting details. The examination required by statute has been had; several witnesses examined. The court has found and determined that respondent is guilty of murder in the first degree.
“In my private interview with respondent I assured him that he must not plead guilty unless he really is guilty; that he was not required to plead guilty; that lie could have a trial by jury if he desired it. He assured me freely and voluntarily that he is guilty and that his one desire is to have it all over, to get to the institution to which he is to be committed, and to be under observation and to be examined.”
On May 26, 1950, defendant filed a motion for a new trial for the following reasons:
“1. Because the verdict is contrary to the law, whereas said respondent was deprived of rights essential to a fair trial.
“2. Because at no time was assistance of counsel offered or mentioned to respondent.
“3. Because said respondent was not informed of the consequence of his plea of guilty.
“4. Because said respondent was hurried through unfamiliar legal proceedings with not a word being-said in his defense or cross-examination of the State’s witnesses.
“5. Because said respondent, being of the age of 17 years at the time of said trial and possessed of only a seventh grade education, was not otherwise' aware of his constitutional rights.”
A hearing was held on the above motion, testimony taken tending to show high tension in the city, threats of plots to do defendant bodily harm, and. that he was taken over a back road to prison.
Charles Struble, who was sheriff of Kalamazoo' county in 1938, testified:
“In talking with Willie Moore — that was before he had made any statement — I told him that if he was guilty of it he might better own up on it because I says there could be trouble. Tension is very high outside and there could be trouble. If you are-not guilty of it, why then, I says, I would stand pat forever after. Then I told — I spoke to him about what would be required of him and I would have to- take him to the municipal court for his arraignment in the lower court and then back over there, and I told him he would be entitled to a hearing in lower court and I says, ‘There you will have the judge read to you and you can waive or demand an examination. You are entitled to an examination over there. It is my duty, and it is up to me, to protect you, to use every effort at my command to protect you, hut, I says, ‘the tension is high out there and I am just telling you what could happen if it was started by someone.’ I don’t know the language I used. * * *
“I don’t know as I come out and said at any time for him to plead one way or the other, hut what I was putting over to him was the fact that if you are guilty and will be sent away you might better he getting away before trouble, because I had had information there was certain colored fellows, a group of them, that was going to interfere with me, and also that there was a bunch of Holland fellows going to meet me when I go to Jackson, they would meet me there at Galesburg there, and, therefore, when he was sentenced I avoided the main route and went way through by Gull Lake and across over in the hills there.”
The record also shows that defendant is a colored man. He was 17 years of age at the time of his sentence, had a seventh grade education, and was without assistance of counsel at the time he pleaded guilty. Prior to this time he pleaded guilty to the theft of an automobile. It is also a fact that the trial judge is deceased and that no official records were kept of the arraignment.
The trial court denied defendant’s motion for a new trial, and in doing so stated:
“It is the conclusion of this court that the plea of guilty made by the respondent on October 29, 1938, was freely and voluntarily made, and that the respondent was fully aware of the nature of the aecusa tion made against him and the possible consequences of his plea. It is the further conclusion of this court that before such plea was accepted by the late Judge "Weimer, the respondent was informed of his right to a trial by jury and of his right to be represented by counsel, and that the respondent indicated his desire to proceed without counsel and without a trial, and (that it was) his desire to have his plea of guilty received by the court and sentence imposed without further delay.
“At the hearing held on November 20, 1950, Charles Struble, who was sheriff of Kalamazoo county at the time of the respondent’s arrest and arraignment, plea and sentence, also testified. His testimony indicated very convincingly that while tension in the community was rather high due to the commission of this crime and the manner of its commission, there was no threat of mob violence, no congregation of anything that could by any stretch of reasoning be considered a mob or a riotous gathering, and that while the sheriff felt inclined to take certain precautions and did take certain precautions to avoid any trouble, there was nothing in the situation then existing to indicate that the respondent had been coerced into a false plea, or that he had been placed in fear of insisting upon his constitutional rights.
“It is the conclusion of this court that the circumstances in this ease are not similar to the circumstances which prevailed in the case of DeMeerleer v. Michigan, 329 US 663 (67 S Ct 596, 91 L ed 584), and that the determination of this motion cannot rest upon the ruling made by the supreme court in that case. While it is true that the respondent here was 17 years old at the time of his sentence, it is not true that he was unfamiliar with court proceedings. He was advised by the court as to his right to counsel. He expressed a desire not to have counsel. He was advised of the consequences of his plea, his plea was understandingly and voluntarily made, and all of his constitutional rights were properly accorded him.
“The motion is therefore denied and an order may be entered to this effect.”
The principal issue upon this appeal is whether ■defendant was accorded due process of law within the meaning of the Constitution of the United States. Due process is the guarantee of rights essential to a fair hearing under the Federal Constitution. See DeMeerleer v. Michigan, 329 US 663 (67 S Ct 596, 91 L ed 584). In the above case it was held that the ■defendant was deprived of rights essential to a fair hearing. In the DeMeerleer Case defendant was 17 years of age, confronted with a serious criminal charge, hurried through unfamiliar legal proceedings without assistance of counsel, and not apprised -of the consequences of his plea.
In the case at bar defendant was 17 years of age, ■of limited education, questioned for hours as to the ■extent of his participation in the crime, and did not have counsel, friends or relatives to advise him of the consequences of a plea of guilty. Moreover, there was high tension in the community and threats of "violence directed at defendant.
The facts in this case are readily distinguishable from the facts in People v. Coates, 337 Mich 56. In that case defendant was 25 years of age and experienced in crime. In People v. Quicksall, 322 Mich 351, defendant was 44 years of age and of fairly keen intellect with experience in court procedure. Under the facts and circumstances in this case, we .are of the opinion that due process of law was not accorded defendant.
The judgment of conviction should be reversed and a new trial ordered.
Carr, C. J., and Smith, J., concurred with Sharpe, J.
Boyles, J.
I am unable to concur in reversal and In the granting of a new trial. As I see it, the only-real similarity between this case and the DeMeerleer Case is that in both cases the defendants were 17 years of age and pleas of guilty without attorney were received.
After this defendant had pleaded guilty, the judge had a conference with the defendant to ascertain whether the plea of guilty was made freely and voluntarily without undue influence, coercion, promises or threats. Thereafter the judge, in open court, announced that the plea of guilty would be accepted, and proceeded to take testimony to determine the degree of murder. A record of those proceedings in open court was made and transcribed, and is in the printed record here. Pour witnesses were sworn and their testimony, which is in the record, seems to ■establish beyond a reasonable doubt that the defendant was guilty of first-degree murder with which he was charged. The statements of the sentencing judge made in open court, on accepting the plea, and imposing sentence, are also in the record.
It may be conceded that we are not now concerned with the question whether or not this defendant is guilty of murder. However, it is worthy of note that nowhere in these entire proceedings in the trial court, or here, has the defendant ever claimed that he was not guilty. He still does not deny his guilt «of having committed what appears to have been a most heinous, revolting, sadistic murder and mutilation of an elderly woman.
While it is not of controlling importance now, In considering here whether the defendant’s constitutional rights have been invaded, the court should not ignore the difficulties in obtaining proof of the commission of this crime after the lapse of 17 years, and also the possible consequences of returning to society a person likely to increase the public burden of preventing sex crimes. The record here before us made at the time of the defendant’s arraignment and sentence includes the following statement made by the sentencing judge in open court at the time of' defendant’s arraignment and plea, in referring to the murdered woman, and the admissions of the-defendant. The court said, in part:
“When she then reached the basement he [the defendant] exhibited the knife he had in his pocket and commanded her to remove her clothing; that she did; that he then raped her and then when she was about to leave the basement she made the remark ‘You will' pay for this;’ that he realized that she recognized him, knew him as having been there before, and that then he struck her 1 severe blow on the head with the furnace shaker; that that ‘knocked her out;’' she fell to the floor. He then cut her throat and then, stabbed her in the abdomen and, to use his words,, ‘her guts then came out’ and he left. Such is his-story to me in private, told very calmly; without any compulsion whatever. He insists that there is something wrong with his head; that he has had something akin to queer sensations before this.
“This, without question, is the most pronounced base of sadism in the criminal annals of this county.”'
The record here further shows that in 1950, the sentencing court held a hearing on a petition of the-defendant seeking a new trial, obviously relying on the DeMeerleer Case, supra. The. defendant was. represented there in court by counsel. The trial court made a transcript of that proceeding, and it is here in our record, filed by the defendant. The-court took the testimony of 8 witnesses, all of whom were cross-examined at length by the defendant’s, counsel. The defendant himself also was sworn and testified briefly, disputing categorically tbe record made by tbe sentencing court at tbe time of his arraignment.
In compliance with the law in this State, the sentencing judge had interviewed the defendant in his chambers before receiving his plea of guilty, to assure the court that the plea was voluntary and not coerced, before accepting it. The record here shows that the trial court, before accepting the defendant’s plea of guilty, stated on the record and in open court:
“In my private interview with respondent I assured him that he must not plead guilty unless he really is guilty; that he was not required to plead guilty; that he could have a trial by jury if he desired it. He assured me freely and voluntarily that he is guilty and that his one desire is to have it all over, to get to the institution to which he is to be committed, and to be under observation and to be examined.”
The record here further shows that the defendant had been in trouble 4 or 5 times before committing this murder, consisting of breaking and entering and unlawful taking of automobiles, had been committed to the State boys’ vocational school for delinquent boys, and that he was later arrested again for stealing an automobile.
Contrary to the DeMeerleer Case, this defendant was not arrested, brought into court, arraigned, and sentenced all in the same day. He had 4 days during which he might ask for an attorney, or for an opportunity to confer with friends or relatives. He makes no claim that at any time he made any such request. To the contrary, his insistence with the trial court that he was guilty, wanted to plead guilty and get it over with, negatives the idea that he wanted to confer with counsel or with friends. While he was questioned at length during those 4 days, he falls short of showing that he was threatened or promised leniency. The record here would not support such a claim.
In the Quicksall Case, on certiorari to the United States supreme court from this Court, Mr. Justice Frankfurter, delivering the opinion of that court,, said of Quieksall, the petitioner, on his motion to vacate sentence and for a new trial:
“He claims that he was deprived of his right to counsel to the extent that the due process clause of the Fourteenth Amendment secures that right. The generalizations that are relevant to such a claim no longer call for elaboration. They have been set forth in a series of recent opinions [citing them].. * * * There is no evidence that, at the time of his plea petitioner requested counsel or that appointed counsel was offered him. * * *
“Almost 10 years after his sentence, on April 18, 1947, the petitioner asked the circuit court for Kalamazoo county to vacate it and to grant him a new trial. He claimed the sentence had a constitutional infirmity in that he did not have the assistance of counsel and was prevented from communicating with counsel of his choice while he was hospitalized. * -X< *
“The trial judge took no stock in the reconstructing memory of the petitioner and denied his motion. The Supreme Court of Michigan affirmed. 322 Mich 351. We brought the case here out of a zealous regard for due observance of the safeguards of the Fourteenth Amendment in the enforcement of a State’s penal code. 336 US 916 (69 S Ct 882, 93 L ed l079). The record exacts the holding that the petitioner has failed to sustain the burden of proving such a disregard of fundamental fairness in the imposition of punishment by the State as alone would justify this court to invalidate the sentence by reason of the due process clause. * * *
“Since the Michigan courts disbelieved petitioner’s allegations that he had not been allowed to communicate with his family, his friends or a lawyer, and no request was made by him for legal aid, the only ■question is whether, in the circumstances of this ■case, the failure of the record to show that he was offered counsel offends the due process clause. * * #
“In the light of what emerged in this proceeding upon a scrutiny of what took place before the same judge 10 years earlier, when petitioner’s plea of guilty was tendered and accepted, it would stultify the due process clause to find that any right of the petitioner was infringed by the sentence which he incurred. Foster v. Illinois, 332 US 134, at 138 (67 S Ct 1716, 91 L ed 1955); Bute v. Illinois, 333 US 640, 670-674 [68 S Ct 763, 92 L ed 986].”
The Quicksall Case is directly in point and controlling here. This Court should enter an order affirming the denial of the defendant’s petition in the trial court to vacate sentence and for a new trial.
Butzel, Reid, Dethmers, and Kelly, JJ., concurred with Boyles, J.
Affirmed in Quicksall v. Michigan, 339 US 660 (70 S Ct 910, S CT ed 1188).—Reporter.
People v. DeMeerleer, 313 Mich 548, reversed on certiorari in DeMeerleer v. Michigan, 329 US 663 (67 S Ct 596, 91 L ed 584).
CL 1948, § 768.35 (Stat Ann 1954 Rev § 28.1058).
Quicksall v. Michigan, 339 US 660 (70 S Ct 910, 94 L ed 1188), affirming People v. Quicksall, 322 Mich 351. | [
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Smith, J.
This case arisen ont of a right of renewal contained in a written lease. The plaintiffs-appellants are the landlords. The defendant-appellee is the tenant. The plaintiffs-appellants obtained a judgment of restitution from the circuit court commissioner. This judgment, however, was reversed by the circuit court and judgment entered for defendant-appellee. The case is before us on a general appeal.
The premises in question were leased to defendant for a term beginning May 15, 1950, “and ending the 15th day of May, 1953.” The lease was a so-called “long” form lease, Abstract Title & Guaranty Form No. 111. It contained the following clause:
“The tenant shall have the right at the expiration of his lease to renew said lease for a term of 1, 2, 3, 4 or 5 years at the same rental; at the expiration of said second lease the tenant shall have the right to renew said lease for a period of 4 years at a rental set by 3 arbitrators (one of whom, shall be appointed by the tenant, one by the landlord and the third by the 2 appointed arbitrators). At the expiration of 34 — 1/2 months from the date of the present lease, the tenant shall notify the landlord of her intent to abandon the premises or release the premises.”
On February 4, 1953, the tenant sent to the landlords a notice, received by them within the limiting time, reading as follows:.
“This is your notice from me that I intend to exercise my right to renew my tenancy at 6708 Park avenue, Allen Park, Michigan, for a period of 5 years, and also to' inform you that I have in my possession a typewritten lease ready for your.signatures and mine.”
The lease submitted by the tenant was rejected by the landlords’ then counsel on May 12, 1953. (It was on the Richmond Backus short form.) No defects or omissions were specified as grounds for rejection. It was simply rejected as “unsatisfactory and not in accordance with the agreement of the parties.” So matters rested until after May 15, 1953. At some time subsequent thereto the parties commenced mutual discussions with respect to the terms of their lease. Plaintiff-appellant Sidney Boden testified that, at least initially, he was willing to sign a lease exactly like the original and, in fact, instructed his counsel to draw one up and submit it to the tenant. This, however, was not done, for reasons which are not entirely clear in the record. Negotiations continued. The landlords were unhappy with the short form and preferred the long form. The tenant, however, at no time refused to sign the long form, although it is not clear that it was ever tendered to her, or that her tender of the short form was anything more than inadvertence. There was a great deal of fencing back and forth, much talk of what the long form contained and the short form omitted, of what the parties were qr were not willing to sign and what their legal rights were under the various forms. Meanwhile the tenant continued to pay the stipulated rental, which the landlords accepted without protest until January 15, 1954, when notice of increase in rent from $165 to $350 per month was served. It was resistance to this increase which brings this case into this Court.
The applicable principles of law have long been settled by this Court and, once the fuss about the forms (all of which was wholly immaterial) is eliminated, they may be clearly seen. The lease was a present demise for 3, 4, 5, 6, 7 or 8 years, at the option of the lessee. Meadow Heights Country Club v. Hinckley, 229 Mich 291. Under our law there is no ambiguity with respect thereto, nothing to be given a “practical” construction by the parties, or “interpreted” by them. With respect to the tenant’s exercise of her option, it suffers no legal defect. The lease does not purport to prescribe any particular form of words. All that is required is that the tenant inform the landlord with reasonable certitude, in terms that cannot fairly be misunderstood, of her exercise of the option given her by the lease. This she did, and seasonably, when she wrote that she intended to exercise her right to renew her tenancy for a period of 5 years.
Under the view we have taken of the case it is unnecessary that we discuss the legal effect of the conduct of the parties (particularly as regards rents tendered and accepted subsequent to May 15, 1953) upon any arguable necessity for the execution of another formal instrument.
The judgment of the lower court is affirmed. Costs to appellee.
Carr, C. J., and Butzel, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred. | [
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Sullivan, J.
Defendant Lansing Community College Chapter of the Michigan Association for Higher Education appeals as of right from an opinion and order of the Ingham Circuit Court which vacated an arbitration award. We reverse.
Ronald P. Byrum, a member of the defendant association, was employed by plaintiff Lansing Community College as an associate professor of psychology from 1975 until May 15, 1984, when he was discharged primarily for allegedly smoking marijuana with his students at his condominium. Through the defendant, his bargaining representative, Byrum filed a grievance contesting his discharge pursuant to the terms of the parties’ collective bargaining agreement. Byrum alleged, inter alia, that the college discharged him without "just cause” in violation of Article VI.T.l of the agreement, which states, "No faculty member shall be reprimanded, demoted, or discharged without just cause.”
Pursuant to the grievance procedure, the dispute was submitted to an arbitrator, who received the following evidence: In November, 1983, W. Heater, chairperson of the social science department at the community college, received an anonymous letter from one of Professor Byrum’s students. The letter informed Heater that Byrum had distributed drugs in a psychology class and conducted "bazaar [sic] pot parties disguised as a college class.”
Consequently, C. Alvarado, an undercover Lansing police officer, enrolled in Professor Byrum’s Altered States of Consciousness class, which began in January, 1984. Alvarado testified that during the last week of February, 1984, Byrum informed the class that the next meeting would be held in his condominium. Apparently, Byrum also told Alvarado that marijuana would be distributed at that class.
Alvarado attended the next "class” at Byrum’s condominium during the evening of March 4, 1984, with J. Martin, an Eaton County deputy sheriff. Alvarado testified that both Byrum and his students were smoking marijuana from a pipe and that Byrum even offered a student his own pipe, containing a "special blend.” Eventually, Alvarado and Martin signalled a surveillance crew stationed outside to enter and secure Byrum’s arrest.
S. Abdo, a member of the surveillance crew, testified that Byrum admitted to him that all the marijuana at the party belonged to him, rather than to the students. However, at the hearing, Byrum denied that any marijuana was smoked in his presence. He testified that he tried to dissuade his students from smoking the pipes, as he suspected the pipes contained marijuana. He claimed that neither of the pipes confiscated belonged to him.
The arbitrator issued her opinion and order on September 3, 1985, in which she found that Byrum committed the marijuana-related offenses with which he was charged, and did so under work-related conditions. However, she further found that Byrum’s conduct was not so grave a violation of professional obligations as to constitute just cause supporting the sanction of discharge. In arriving at this conclusion, the arbitrator considered several mitigating factors, including Byrum’s good record with the college, the facts that the students enrolled in the college are adults who are not necessarily influenced by Byrum’s personal conduct and that Byrum "condoned” rather than "advocated” marijuana, the college’s failure to promulgate rules on faculty drug use, and the college’s approval of the course. The arbitrator determined that dismissal was too harsh a penalty, and awarded Byrum reinstatement without back pay. The fifteen months lost by Byrum prior to the order was considered a disciplinary suspension.
The plaintiff college thereafter filed a complaint in the Ingham Circuit Court, seeking to vacate the arbitrator’s award. Defendant filed an answer and counterclaim for enforcement of the award. Subsequently, the circuit court entered summary disposition in favor of the college and vacated the award. The basis for the circuit court’s decision is twofold: that the award was beyond the arbitrator’s contractual authority and contrary to public policy. We will address these issues seriatim.
i
The first issue is whether the circuit court erred in vacating the award upon the basis that the award was beyond the contractual authority of the arbitrator.
Labor arbitration is, of course, a product of contract and an arbitrator’s authority to resolve a dispute arising out of the appropriate interpreta tion of a collective bargaining agreement is derived exclusively from the contractual agreement of the parties. Port Huron Area School Dist v Port Huron Ed Ass’n, 426 Mich 143, 150-151; 393 NW2d 811 (1986). Consequently, it is well settled that judicial review of an arbitrator’s decision is limited; a court may not review an arbitrator’s factual findings or decision on the merits. Id. at 150. Rather, a court may only decide whether the arbitrator’s award "draws its essence” from the contract. If the arbitrator, in granting the award, did not disregard the terms of his employment and the scope of his authority as expressly circumscribed in the arbitration contract, judicial review effectively ceases. Ferndale Ed Ass’n v School Dist for City of Ferndale #1, 67 Mich App 637,, 642-643; 242 NW2d 478 (1976); Port Huron Area School Dist, supra at 151.
Here, in vacating the arbitration award, the circuit court stated in pertinent part:
Apart from, and independent of the public policy rationale, the Court believes the Arbitrator exceeded her authority as well. The clear implication of Art VI.T.l is that the College, by the languagé of the CBA [collective bargaining agreement], retained the authority and discretion to terminate an employee as long as it was for just cause. The retention of that authority is a term of the CBA which Arbitrator Kahn was required to adhere to. There is no question that the type of criminal conduct which Arbitrator Kahn found Prof. Byrum to have engaged in would be sufficient cause for discharge. Consequently, the Court believes that she erred and exceeded her authority by finding that even though he was involved in such conduct, discharge was not justified.
Article VI.T.l of the agreement, to which the court referred, states in part: "No faculty member shall be reprimanded, demoted, or discharged without just cause.” Article VIII.C.4.a provides that any grievance, not previously resolved, may be submitted to an arbitrator. Article VIII.A. 1 defines a grievance as "an alleged violation, misinterpretation, or misapplication of a specific article or section of this agreement and/or the board’s personnel policies.” Article VIII.C.4.b provides:
The power of the arbitrator shall be limited to the interpretation or application of this agreement, and he/she shall have no power to alter, add to, or subtract from the terms of this agreement as written. The decision of the arbitrator shall be binding on all parties involved.
Professor Byrum’s grievance charged an alleged violation of Article VI.T.l, the just cause provision. The arbitrator determined that the misconduct did not constitute just cause for dismissal and, thus, acted pursuant to her power described in Article VIII.C.4.b, above, to "interpret and apply the agreement.” The arbitrator was not prohibited from considering mitigating factors in arriving at her conclusion and did not exceed her contractual authority in doing so.
Moreover, in finding to the contrary, the circuit court relied on its own interpretation of the collective bargaining agreement and its own conclusion that the marijuána-related activities did constitute just cause for’ dismissal. In making its own just cause determination, the circuit court exceeded its authority. As stated, judicial review of a labor arbitration award is very limited and the reviewing court must not substitute its judgment for that of the arbitrator in questions of contract interpretation. Port Huron Area School Dist, supra; Kaleva-Norman-Dickson School Dist No 6 Cos of Manistee, Lake & Mason v Kaleva-Norman-Dickson Teachers Ass’n, 393 Mich 583, 595; 227 NW2d 500 (1975). In reviewing the award, the circuit court was limited to deciding whether the arbitrator acted within her authority. The court’s failure to defer to the arbitrator’s interpretation of the agreement was error. The parties bargained for the arbitrator’s construction of the just cause provision of the contract and, subject to the discussion ahéad, they are bound by it.
ii
The second issue is whether the circuit court erred in vacating the arbitrator’s award upon the alternative basis that it violated public policy. Although this jurisdiction does recognize a public policy exception to the usual deference given to an arbitrator’s award, we are not persuaded that the instant award violated public policy.
In WR Grace & Co v Local 759, Int’l Union of the United Rubber, Cork, Linoleum & Plastic Workers of America, 461 US 757, 766; 103 S Ct 2177; 76 L Ed 2d 298 (1983), the United States Supreme Court recognized that an arbitration award may indeed be vacated as being violative of public policy:
As with any contract, however, a court may not enforce a collective-bargaining agreement that is contrary to public policy .... [The arbitrator’s] view of his own jurisdiction precluded his consideration of this question, and, in any event, the question of public policy is ultimately one for resolution by the courts .... If the contract as interpreted by [the arbitrator] violates some explicit public policy, we are obliged to refrain from enforcing it ... . Such a public policy, however must be well defined and dominant, and is to be ascertained 'by reference to the laws and legal precedents and not from general considerations of supposed public interest. [Citations omitted.][ ]
City of Saginaw v Michigan Law Enforcement Union, Teamsters Local 129, 136 Mich App 542; 358 NW2d 356 (1984), appears to be the sole Michigan decision in which the arbitrator’s award was objected to as being violative of public policy. There, the arbitrator enjoined the city from continuing to require police officers represented by the Teamsters union to forfeit one paid work day per month, and ordered the city to pay each member of the bargaining unit for the work days lost due to this practice. The city sought to have this award vacated as a violation of public policy, claiming that it would force the city, which was suffering from financial difficulties, to lay off police officers. This Court concluded that the award did not violate public policy because the award itself did not mandate work force reductions. The Court explained that, if the city "now decides it must lay off police officers for pecuniary reasons, that [is] its decision, not that of the arbitrator.” Id. at 558.
Because no case within this jurisdiction has vacated an arbitrator’s award as violative of public policy, the parameters of the exception are unclear. Defendant maintains the exception would apply only where the arbitrator affirmatively orders a party to commit an illegal act. Defendant consequently reasons that the exception would be inapplicable to the instant facts because the action which the award mandates, reinstating Professor Byrum, is not contrary to law. By contrast, plaintiff asserts that the award was contrary to the well-defined public policy against illegal drug use, particularly that by a teacher with his students.
Defendant’s argument is supported by a recent case decided by the United States Court of Appeals for the District of Columbia. In American Postal Workers Union, AFL-CIO v United States Postal Service, 789 F2d 1 (DC Cir, 1986), the court reversed a judgment by the district court which had vacated an arbitration award. The appellate court held, inter alia, that the award, which reinstated an employee who was discharged for allegedly misappropriating company funds, was not against public policy. Noting the narrow definition of the public policy exception set forth by W R Grace, the American Postal Workers court concluded:
There is surely no doubt that the instant case does not pose a situation requiring the invocation of a public policy exception. The arbitrator’s award was not itself unlawful, for there is no legal pro scription against the reinstatement of a person such as the grievant. And the award did not otherwise have the effect of mandating any illegal conduct. In other words, even if the arbitrator’s view of Miranda [v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 644; 10 ALR3d 974 (1966)] was wrong, his decision to exclude the grievant’s statements did not in any manner violate the law or cause the employer to act unlawfully. In addition, and most importantly, the grievance plainly raised an arbitrable issue; the arbitrator was properly designated and authorized to hear the case; and the arbitral judgment rested on an interpretation of the contract. [789 F2d 8.]
American Postal Workers, however, appears to represent the minority view among the federal circuits. In El DuPont de Nemours & Co v Grasselli Employees Independent Ass’n of East Chicago, Inc, 790 F2d 611 (CA 7, 1986), cited by the college, the Seventh Circuit affirmed a judgment of the district court which vacated an arbitration award granting reinstatement to an employee who attacked his supervisor and destroyed company property following a nervous breakdown. Rejecting the notion that the award did not violate public policy because the reinstatement was not contrary to law, the court reasoned:
The concurrence argues that an arbitration award cannot be overturned on public policy grounds unless the contract as construed by the arbitrator violates some rule of positive law. More precisely, in the context of the review of an arbitration award which orders the reinstatement of an employee because there was no just cause to terminate that employee, the concurrence argues that so long as the reinstatement of that employee does not violate any rule of positive law, the award cannot be overturned on the ground of public policy. However, the courts have never construed the public policy exception so narrowly. An employer who employs someone who has used drugs does not violate any rule of positive law, yet the Fifth Circuit overturned an award which ordered the reinstatement of an employee who was smoking marijuana on company premises, because the award violated public policy. Misco [Inc v United Paperworkers Int Union], 768 F2d [739], 742-43 [(CA 5, 1985)]. An employer who employs a truck driver who admittedly drank while on duty does not violate any rule of positive law, yet the Fifth Circuit overturned an award which ordered the reinstatement of such an employee, because the award violated public policy. [Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, Local 540 v Great Western Food Co, 712 F2d 122, 124-25 (CA 5, 1983)]. If the Postal Service employs a convicted embezzler, this employment does not violate any rule of positive law, yet the First Circuit overturned an award which ordered the reinstatement of such an employee, because the award violated public policy. [United States Postal Service v American Postal Workers Union, AFL-CIO, 736 F2d 822, 825-26 (CA 1, 1984)]. In this last case, the union raised precisely the same argument that is proffered by the concurrence today: Even if there is a public policy against embezzling Postal Service funds, there is no public policy against the Postal Service employing convicted embezzlers, and to overturn an award on public policy grounds "[y]ou have to have something more—a direct legal prohibition.” Id. at 824. Yet the First Circuit explicitly rejected such a requirement. Id. See generally [R. Gorman, Labor Law-Unionization and Collective Bargaining, p 597 (1976)] ("when the award, although not requiring illegal conduct, is said to be inconsistent with some significant public policy,” the award may be overturned.) [Id. at 616.]
The cases cited by the DuPont court obviously construe the public policy exception in a much broader manner than did the American Postal Workers court. Although we do not necessarily believe that the award itself need be unlawful or have the effect of mandating illegal conduct before the exception may be invoked, American Postal Workers, supra, we likewise are unable to reconcile such a broad application of the exception with the decision and rationale of the W R Grace opinion, supra.
Rather, we are of the opinion that; complying with the requirements of WR Grace, a reviewing court may overturn an award if the underlying contract, as interpreted by the arbitrator, violates a well-defined and dominant public policy. Additionally, an award which itself violates such a public policy may be vacated by the reviewing court. In determining if an award itself violates public policy, the court must consider each case on its own set of facts and must pay special attention to the actual ramifications of the award, which must not be contrary to the public interest protected by the public policy at issue. Here, the arbitrator interpreted the collective bargaining agreement and found that Professor Byrum’s conduct constituted just cause to support a suspension without pay but not the sanction of permanent dismissal. Contrary to the circuit court’s holding, neither the agreement, as so interpreted, nor the award violates the well-defined public policy against the use of illegal narcotics. The arbitrator merely interpreted the agreement as providing violators such as Professor Byrum a second chance at employment following the imposition of a form of punishment less severe than permanent discharge. Based on the facts of the case, the arbitrator obviously found that Professor Byrum was still capable of teaching at the community college level. We are unpersuaded that Byrum’s return to the college is contrary to public interest. Any other holding would be based upon a general consideration that similar violators might never again be worthy of pursuing their chosen profession. Such a supposed public interest, W R Grace, supra, is, of course, an insufficient basis upon which to invoke the public policy exception.
Reversed and remanded for further proceedings not inconsistent with this opinion.
Professor Byrum also alleged that his discharge violated VI.T.2 of the agreement, which required that the college give "due process” notice to faculty members of complaints filed against them. This claim was rejected by the arbitrator, and is not at issue on this appeal.
Byrum was tried in Ingham Circuit Court in August, 1984, on charges of distribution, possession, and use of marijuana. He was acquitted on all three counts.
The arbitrator reasoned that, since the college approved the course, it must have suspected from the course’s title what it entailed.
This case is therefore distinguishable from Bd of Control of Ferris State College v Michigan AFSCME Council 25, Local 1609, 138 Mich App 170; 361 NW2d 342 (1984), discussed by the parties, where this Court held that an arbitrator exceeded his contractual authority by reinstating a grievant after expressly finding that just cause existed for dismissal. The Ferris State College panel, in fact, distinguished cases such as the present case, where the arbitrator found no just cause for dismissal because the penalty was too great. Id. at 178.
Michigan courts, of course, in construing provisions and ramifications of the public employment relations act, MCL 423.201 et seq.; MSA 17.455(1) et seq., frequently look to decisions of federal courts which construe and' apply the National Labor Relations Act. See Kaleva-Norman-Dickson, supra.
In Fraternal Order of Police, Ionia Co Lodge No 157 v Bensinger, 122 Mich App 437; 333 NW2d 73 (1983), lv den 418 Mich 853 (1983), this Court recognized the public policy exception to the otherwise narrow standard of review of an arbitrator’s decision. However, the Bensinger Court found the exception inapplicable in the case before it because the party challenging the award had alleged that the arbitrator’s findings of fact and conclusions of law, rather than the award itself, had violated public policy. Id. at 447-448. In City of Sagniaw v Firefighters Ass’n Local 422, IAFF, AFL-CIO, 130 Mich App 401; 343 NW2d 571 (1983), the panel similarly determined that the public policy exception was inapplicable because the award was not objected to as violating public policy. This latter panel, consequently, refused to review to the objecting party’s claim that the arbitrator improperly modified the collective bargaining agreement and failed to give effect to all the language of an ordinance allegedly relevant to the dispute. Id. at 407-408. | [
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Per Curiam.
Plaintiffs Terry L. Faler and his daughter, Deidra L. Faler, appeal as of right the dismissal of their complaint against defendants Lenawee County Sheriff, Lenawee County Jail, and Lenawee County Jail Commander, pursuant to MCR 2.116(C)(8), for failure to state a claim upon which relief could be granted.
The issue in this case is whether a refusal to allow contact during jail visitation violated the constitutional rights of Terry L. Faler, a convicted felon, and Deidra L. Faler, his eight-year-old daughter.
Visitation at the Lenawee County Jail consists of noncontact visits during which the prisoner stands in a small room and speaks through a telephone to his visitor, whom the prisoner can see on the other side of a small window. The visitor is not enclosed in a room but stands along a corridor lined with "visitation stations.” For at least ten years prior to August 17, 1983, the jail’s visitation policy placed no restriction on the age of the visitors. On August 17, 1983, the jail adopted a new policy denying jail visits to persons between the ages of one year and sixteen years unless special permission was obtained from the jail administration. The new visitation policy was instituted because young children were disrupting the jail by crying, screaming and running up and down the hallway along which the visitation stations were located. In addition, the children’s con duct also created a potential liability problem for the county were injuries to occur as a result of falls or other accidents. The policy was in effect between August 17, 1983, and October 25, 1983. After October 25, 1983, the county jail changed the policy concerned with handling disruptive conduct by requiring supervision of small children.
On August 21, 1983, plaintiff Terry L. Faler began serving a jail sentence at the Lenawee County Jail. His daughter, Deidra, was eight years old at the time. On August 29, 1983, Deidra and Terry’s fiancee, Brenda Rogers, went to visit him at the county jail. Deidra was not allowed to see her father. Plaintiffs claim that none of the jail personnel on duty knew anything about any procedure to obtain special permission other than that the jail commander screened all requests. From his contacts with several deputies, Terry Faler had the impression that any attempts would be futile. One deputy did tell Faler that he could write a "kite” but the deputy specified nothing concerning the content or form of the kite, or to whom it should be directed. However, during all of his incarceration, Terry L. Faler was permitted to have and did have telephone communication with Deidra Faler. Plaintiffs do not claim that they ever submitted a request to the jail commander or that he denied special permission.
According to defendants, inmate visitation rules were posted within the cell blocks. The rules of visitation could be altered for the individual inmate with approval of the jail administrator.
On November 3, 1983, plaintiffs filed an action for damages against defendants, claiming that defendants negligently denied plaintiffs the right to reasonable visitation. In addition, plaintiffs claimed that defendants had violated the Michigan Civil Rights Act. Later, plaintiffs filed a first amended complaint. In addition to the negligence claim alleged in their original complaint, plaintiffs alleged that defendants’ visitation policy violated their right to association guaranteed by the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. In addition, plaintiffs claimed that defendants had denied them their civil rights guaranteed by the Fourteenth Amendment and 42 USC 1983.
On January 2, 1985, plaintiffs filed a motion for partial summary judgment pursuant to GCR 1963, 117.2(2) and (3), now MCR 2.116(C)(9) and (10). On February 25, 1985, the trial court denied plaintiffs’ motion, stating that defendants might have a valid defense because there was a question of fact as to whether or not visitation had occurred in spite of the jail’s visitation policy. In addition, the trial judge denied plaintiffs’ motion because plaintiffs had not filed the proper affidavits to support the motion. However, the trial judge indicated that, if the proper affidavits were filed, he would reconsider plaintiffs’ motion. On July 12, 1985, plaintiffs filed the affidavits and a motion for reconsideration.
On January 10, 1986, defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(8), alleging that plaintiffs had failed to state a claim upon which relief could be granted. On February 26, 1986, the trial judge filed a written opinion denying plaintiffs’ motion and granting defendants’ motion. The trial judge ruled that defendants were immune from liability for plaintiffs’ negligence claims. In addition, he found that plaintiffs had no constitutionally guaranteed right under the First and Eighth Amendments to contact visitation and that the visitation restrictions in the county jail were reasonable and rational. Therefore, the trial judge concluded that there was no violation of the Equal Protection Clause of the Fourteenth Amendment or 42 USC 1983.
On April 30, 1986, the trial judge filed a written opinion in which he reconsidered his February 26, 1986, opinion granting defendants’ motion for summary disposition. In his second opinion, the trial judge noted that the jail did not allow contact visitation. He specifically considered whether the jail’s restrictions on visitation by children between the ages of one and sixteen years violated the First and Fourteenth Amendments and 42 USC 1983. He again concluded that the jail’s visitation policy did not deprive plaintiffs of a constitutionally guaranteed right and therefore did not violate 42 USC 1983.
A motion for summary disposition based on failure to state a claim tests the legal sufficiency of the complaint. MCR 2.116(C)(8). The reviewing court must rely on the pleadings alone and assume that the factual allegations in the complaint are true along with any inferences which may be drawn from those facts. The motion should be granted only when the claim is so unenforceable as a matter of law that no factual development could possibly justify a right to recovery. Bradford v Michigan, 153 Mich App 756, 761; 396 NW2d 522 (1986).
In order to maintain a claim for a civil rights violation under 42 USC 1983, proof of deprivation of a right guaranteed by the constitution or laws of the United States is required. See Oklahoma City v Tuttle, 471 US 808; 105 S Ct 2427; 85 L Ed 2d 791 (1985). The trial court noted that any claim under 42 USC 1983 must fail unless there has been a violation of plaintiffs’ rights under the First or Fourteenth Amendments as alleged in their complaint.
Plaintiffs’ First Amendment claim is grounded in their right to freedom of association protected by that amendment. However, in Thorne v Jones, 765 F2d 1270, 1273 (CA 5, 1985), reh den 772 F2d 904 (1985), cert den — US —; 106 S Ct 1199; 89 L Ed 2d 313 (1986), a case relied on by defendants and the trial judge, the court noted that the associational rights protected by the First Amendment involve the right to associate ideologically. Visitation with a prisoner by his friends and family are not part of those associational rights. The Thorne court, quoting from Jones v North Carolina Prisoners’ Labor Union, Inc, 433 US 119, 125-126; 97 S Ct 2532; 53 L Ed 2d 629 (1977), noted that incarceration itself restricts a prisoner’s right to association:
The fact of confinement and the needs of the penal institution impose limitations on constitutional rights, including those derived from the First Amendment, which are implicit in incarceration. . . . Perhaps the most obvious of the First Amendment rights that are necessarily curtailed by confinement are those associational rights that the First Amendment protects outside of prison walls. The concept of incarceration itself entails a restriction on the freedom of inmates to associate with those outside the penal institution.
The restriction of a prisoner’s associational right is the result of "a proceeding conducted according to the strictest of due process: a criminal trial.” Thorne, 765 F2d 1274.
The federal courts have held that visitation privileges are a matter subject to the discretion of prison officials. See Block v Rutherford, 468 US 576; 104 S Ct 3227; 82 L Ed 2d 438 (1984); Jones v Diamond, 636 F2d 1364, 1376-1377 (CA 5, 1981); McCray v Sullivan, 509 F2d 1332, 1335 (CA 5, 1975), cert den 423 US 859; 96 S Ct 114; 46 L Ed 2d 86 (1975). Relying on Block, supra, and Bell v Wolfish, 441 US 520; 99 S Ct 1861; 60 L Ed 2d 447 (1979), the Thorne court noted that the standard for reviewing a restriction placed , on a prisoner’s First Amendment rights is whether the restriction in question is reasonably related to prison security.
In the instant case, the type of association sought by plaintiff Terry Faler with his daughter is not one of the associational rights protected by the First Amendment. Thorne, supra. Even if the right to visitation were protected, the age restriction imposed by defendants’ temporary visitation policy was reasonably related to maintaining security and safety in the jail. The decision to impose the restriction appears to have been a rational response to the problems caused by unsupervised children during the visitation periods. In our opinion, plaintiffs’ First Amendment rights were not violated.
The instant case is factually distinguishable from O’Bryan v Saginaw Co, 437 F Supp 582 (ED Mich, 1977), 446 F Supp 436 (ED Mich, 1978), and 529 F Supp 206 (ED Mich, 1981), aff'd 741 F2d 283 (CA 6, 1984), upon which plaintiffs rely. The initial O’Bryan case was commenced as a class action by jail inmates for declaratory and injunctive relief, claiming numerous alleged unconstitutional jail practices and procedures. Noncontact visitation was among the many practices and procedures challenged. In the 1981 case, the court observed that prison confinement entails, out of necessity, experiencing certain discomforts. Denial of contact visitation caused inmates certain discomforts. However, since such discomforts resulted from legitimate penal regulations, they were constitutionally valid.
Absent a fundamental right or suspect classification, a classification does not violate equal protection guarantees if it has a rational basis. In re Contempt of Stone, 154 Mich App 121, 127; 397 NW2d 244 (1986). Although certain parental rights have been deemed to be fundamental liberties, such as the right to raise children, Meyer v Nebraska, 262 US 390, 399; 43 S Ct 625; 67 L Ed 1042 (1923); Reist v Bay Circuit Judge, 396 Mich 326, 348; 241 NW2d 55 (1976), we find no authority for the proposition that a parent and child have a fundamental right to visitation without restrictions when the parent is an imprisoned felon. Furthermore, there seems to be no authority showing that age is a suspect classification for the purpose of an equal protection analysis. Therefore, the rational basis test should be used to review defendants’ temporary visitation policy. Stone, supra.
In the instant case, plaintiffs’ claim that Deidra was denied equal protection of the law under the Fourteenth Amendment fails because defendants’ age restriction in its temporary jail visitation policy was rationally related to the county’s interest in maintaining safety and security within the jail for prisoners and visitors alike. Denial of equal protection of the laws did not occur in this case.
Because the age restriction and defendants’ temporary jail visitation policy did not violate plaintiffs’ rights as protected by the First and Fourteenth Amendments, plaintiffs’ claim under 42 USC 1983 must fail. Oklahoma City, supra. Consequently, plaintiffs failed to state a claim upon which relief could be granted. Since no factual development could possibly support a right to recovery, the trial court properly granted defendants’ motion pursuant MCR 2.116(C)(8). Bradford, supra.
Additionally, we agree with the trial court’s ruling that plaintiffs’ negligence claims were properly dismissed for reasons of governmental immunity. See Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984).
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Per Curiam.
Defendant was convicted in 1981 on two counts of assault with intent to commit murder, MCL 750.83; MSA 28.278, possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), and carrying a concealed weapon, MCL 750.227; MSA 28.424. Defendant was sentenced to life imprisonment on the assault convictions. On appeal to this Court, the assault and felony-firearm convictions were reversed. People v Crawford, 128 Mich App 537; 340 NW2d 323 (1983). After retrial on those charges, defendant was again convicted on two counts of assault with intent to commit murder and felony-firearm. This time the judge sentenced him to two concurrent terms of from sixty-five to one hundred years on the assault with intent to commit murder convictions, plus the mandatory two-year term on the felony-firearm conviction. Defendant now appeals as of right.
Defendant’s convictions arose out of a shoot-out at the Grand Rapids Hall of Justice in January, 1981. When police officers met defendant there to execute an outstanding warrant for his arrest, defendant shot two of them. At hté second trial, defendant presented a diminished capacity defense, claiming he was too intoxicated from his voluntary use of alcohol and drugs to form the requisite specific intent necessary for conviction of assault with intent to murder.
Defendant’s first claim on appeal is that the court’s jury instructions on specific intent imper-missibly shifted the burden of proof from the prosecution to defendant. Defendant did not object to the instructions at trial, when any error could have been cured. Therefore, appellate review of this issue is precluded, unless a miscarriage of justice would otherwise result. People v Morris, 139 Mich App 550, 560; 362 NW2d 830 (1984). To insure that no injustice is done defendant, we have reviewed the jury instructions and find no egregious error. Jury instructions must be read as a whole, and if they adequately inform the jury of the applicable law, no error requiring reversal is established. People v Stewart, 126 Mich App 374, 377; 337 NW2d 68 (1983). The trial court’s instructions on specific intent, when read as a whole, were proper. The court did not, as defendant argues, instruct the jurors that they could presume specific intent. Cf., People v Wright, 408 Mich 1, 22; 289 NW2d 1 (1980).
Defendant raises two issues concerning his sentences. Defendant first objects that the judge gave him harsher sentences than he had received on the same convictions after his first trial, although no new information had been produced to justify the increased sentences. A defendant’s due process rights are violated if the judge, in enhancing defendant’s sentence after retrial, indicates on the record that he is imposing a harsher sentence out of vindictiveness against defendant for having successfully appealed from his first conviction. North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969); People v Jones, 403 Mich 527; 271 NW2d 515 (1978), cert den 440 US 951; 99 S Ct 1432; 59 L Ed 2d 640 (1979). Where the record reveals that vindictiveness played no role in the judge’s resentencing decision, the imposition of a higher sentence does not violate defendant’s right to due process. People v Van Auker (After Remand), 132 Mich App 394, 398; 347 NW2d 466 (1984), rev’d in part and remanded 419 Mich 918 (1984).
The record indicates that the judge sentenced defendant to a term of years, rather than the life sentences imposed on his first convictions, only to effectuate his original intent to keep defendant "off the streets as long as possible.” The record does not even hint at any vindictiveness because of defendant’s successful appeal of his original convictions. Between defendant’s first sentencing and second trial, the Supreme Court ruled that a person sentenced to a parolable life term was still eligible for parole consideration after just ten years. People v Johnson, 421 Mich 494, 498; 364 NW2d 654 (1984). The trial court’s decision to impose indeterminate sentences of from sixty-five to one hundred years, instead of life, foreclosed the possibility that defendant would be eligible for parole in just ten years. This is the basis for defendant’s argument that his second sentence was harsher than his first.
This Court, in considering the vindictiveness issue, has held that a parolable life term is, as a matter of law, a lengthier sentence than any term of years, even though a defendant sentenced to life in prison may be eligible for parole before a defendant sentenced to á lengthy term of years. People v McNeal, 156 Mich App 379; 401 NW2d 650 (1986); People v Lindsey, 139 Mich App 412, 415; 362 NW2d 304 (1984). In People v Hurst, 155 Mich App 573; 400 NW2d 685 (1986), this Court, in considering a departure from the sentencing guidelines, expressed its frustration in attempting to review sentences with different parole consequences, especially when compounded by suggestions that the Department of Corrections considers defendants for parole after ten years despite People v Johnson, supra. Pending a response to Hurst from the Department of Corrections, we will abide by this Court’s holdings that a term of years is not harsher than a life sentence. Therefore, this issue is without merit, not only because the judge did not impose a different sentence out of vindictiveness, but also because the new sentence was not harsher than the previous one.
Defendant also argues that the court impermis-sibly considered defendant’s lack of remorse when imposing his sentence. It is neither clearly erroneous nor improper for a trial court to consider a defendant’s lack of remorse in imposing sentence. People v Federico, 146 Mich App 776, 800; 381 NW2d 819 (1985).
Finally, defendant objects that the prosecution did not make a good-faith effort to bring him to trial in compliance with the 180-day rúle, MCL 780.131; MSA 28.969(1). The statute does not require the trial to be commenced within 180 days, but obligates the prosecution to take good-faith action during the 180-day time period and thereafter to proceed to ready the case against the prison inmate for trial. People v Hill, 402 Mich 272, 281; 262 NW2d 641 (1978); People v Tutton, 128 Mich App 412; 340 NW2d 649 (1983). In this case, the prosecution did make a good-faith effort to bring defendant to trial within the 180-day period. Some of the delay, moreover, was attributable to defendant, whose appointed counsel asked the court to reschedule the trial to accommodate his vacation, and then, just before the trial date, stated that he was unprepared, although it had been two months since his appointment. Delays attributable to a defendant have been held to negate a violation of the 180-day rule. People v Pelkey, 129 Mich App 325, 329; 342 NW2d 312 (1983). Finally, defense counsel stated on the record that he had discussed the matter with defendant, who had decided that he would prefer to waive the 180-day rule rather than start the case after only a short period of preparation. Defendant argues that, since defendant himself did not state his affirmance of this on the record, he has not adequately waived his constitutional right. This Court has observed that the right to trial within a certain number of days may be waived. People v Browning, 104 Mich App 741, 760; 306 NW2d 326 (1981). In People v Ridley, 142 Mich App 129, 131; 369 NW2d 274 (1985), this Court observed that, even if the defendant had not waived the 180-day rule on the record, the rule was not violated as the prosecution took good-faith action to ready the case for trial within 180 days and several of the delays were attributable to the defendant. That holding applies to this case as well.
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Per Curiam.
Bruno Weisburg, personal representative of the estate of Wanda Weisburg (decedent), appeals as of right from a January 16, 1986, order of the Macomb Circuit Court granting summary disposition in favor of defendants in this medical malpractice action. Summary disposition was granted pursuant to MCR 2.116(C)(7) on the basis that the complaint was barred by the statute of limitations. We affirm. '
The facts are not in serious dispute. In 1981, decedent consulted with Dr. Norman Payea for advice on pain she had been experiencing. Dr. Payea discovered a mass in her pelvic region and referred her to the radiology department at defendant Tawas St. Joseph Hospital for tests. The tests were completed by defendant Dr. Marta S. Szego on June 16, 1981. After discussing the results with Dr. Payea, decedent decided to get a second opinion from Dr. J. R. Bhavnagri, M.D. Dr. Bhavnagri examined decedent on June 18, 1981, and reviewed the test results from defendant Szego. The next day, Dr. Bhavnagri referred decedent to defendant St. Joseph Hospital of Mt. Clemens for a pelvic ultrasound test. Defendant Dr. John J. Lee, M.D., administered the test and noted no irregularities.
Ten days later, Dr. Bhavnagri and his associate, Dr. E. V. Marcuz, M.D., examined decedent and diagnosed her condition as a fibroid tumor that did not require surgery. Decedent was also treated by defendant Dr. J. C. DiMusto, M.D., in June, 1981. Three months later, in September, 1981, decedent was examined once again by defendant Marcuz. This is the last treatment decedent had with any of the defendants. On June 9, 1982, decedent consulted with another doctor, Dr. Harvey Brinkman, M.D. His diagnosis was that she had a tumor. Decedent then went to Dr. Schaiberger. He ordered several tests for decedent. After reviewing the tests, he diagnosed her as having ovarian carcinoma, a type of cancer. On December 10, 1982, Dr. Schaiberger performed surgery. He also criticized decedent’s previous care in a conversation with her.
In April, 1983, decedent consulted with an attorney to discuss the possibility of bringing a malpractice suit against defendants for failure to properly diagnose her condition. As part of the prepa ration for the suit, she wrote out a memorandum detailing her treatment and naming all of the parties mentioned above. A complaint was filed on May 2, 1983, against Drs. Payea, Bhavnagri and Brinkman, alleging failure to diagnose cancer.
Decedent died on August 24, 1984.
Plaintiffs counsel consulted another doctor relative to the malpractice action in December, 1984. Plaintiff alleges that he discovered the malpractice of defendants as a result of that consultation. On February 19, 1985, plaintiff filed a complaint in the instant case against defendants for failure to diagnose cancer in 1981.
This action is governed by the malpractice statute of limitations, MCL 600.5838; MSA 27A.5838 and MCL 600.5805; MSA 27A.5805. Under those provisions, a plaintiff must bring an action for malpractice within two years of the last date of treatment or within six months after the plaintiff discovers or should have discovered the existence of a claim.
On appeal, plaintiff argues that the existence of a malpractice claim against defendants was not discovered until December, 1984. Plaintiff states that at that time a doctor evaluating the May, 1983, suit discovered that these defendants may also have committed malpractice.
A plaintiff is held to have discovered the existence of a malpractice claim when: (1) the act or omission of the defendant becomes known and (2) the plaintiff has reason to believe that medical treatment was improper or was performed in an improper manner. Kelly v Richmond, 156 Mich App 699; 402 NW2d 73 (1986); Juravle v Ozdagler, 149 Mich App 148; 385 NW2d 627 (1985). The plaintiff has the burden of proving that discovery was not within two years of the date of the last treatment. MCL 600.5838(2); MSA 27A.5838(2).
Once it is shown that the two-pronged test mentioned above has been met, the court may conclude as a matter of law that plaintiff discovered or should have discovered the asserted malpractice and grant defendants’ motion for summary disposition. Blana v Spezia; 155 Mich App 348; 399 NW2d 511 (1986); Lefever v American Red Cross, 108 Mich App 69; 310 NW2d 278 (1981). The trial court’s findings will not be reversed unless clearly erroneous. Blana, supra, p 354.
We conclude that the trial court did not err in finding that plaintiff’s malpractice claim was barred by the statute of limitations. The undisputed facts reveal that plaintiff’s decedent stated in 1982 that her surgeon, Dr. Schaiberger, was openly critical of defendants’ failure to diagnose cancer. In that statement, decedent acknowledged being treated by defendants. Yet decedent chose not to include them in the March, 1983, suit.
Plaintiff asserts that even though decedent and he were aware of a misdiagnosis on the part of the doctors named as defendants in the first suit, they were not aware of the possible malpractice of the doctors named as defendants in this suit until plaintiff spoke with Dr. Singer in December, 1984. We disagree.
The discovery rule applies to discovery of a possible claim, not the discovery of the defendant’s identity, Lefever, supra, p 74. The two suits are based on a single wrong: misdiagnosis. Decedent had actual knowledge in December, 1982, of the misdiagnosis when her surgeon told her about it. Further, decedent’s 1983 statement regarding her suspicion of malpractice mentioned defendants and their respective roles. Thus, not only did plaintiff and decedent know of the potential malpractice claim, Lefever, supra, they knew the identities of the tortfeasors. Clearly the February, 1985, complaint was filed more than six months after the date plaintiff and decedent discovered a malpractice claim against defendants.
Plaintiff also argues that decedent’s death created a separate wrongful death action, even if the time limit has passed for a medical malpractice claim. This argument lacks merit. Actions brought under the wrongful death statute, MCL 600.2922; MSA 27A.2922, are governed by the limitation period applicable to the liability theory of the underlying act. Hawkins v Regional Medical Laboratories, PC, 415 Mich 420, 436; 329 NW2d 729 (1982). See Kelly, supra. Thus, the trial court was correct in granting summary disposition based upon the statute of limitations found in the medical malpractice act.
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Per Curiam.
Inkster Public Schools appeal as of right from an order of the circuit court affirming a decision of the State Tenure Commission, which awarded petitioner permanent tenure as a classroom teacher, advisor and assistant director in three school districts, including Inkster Public Schools. The tenure commission also awarded petitioner lost salary. We affirm.
According to the commission’s factual findings, which we accept because they are supported by competent, material and substantial evidence on the whole record, Beebe v Haslett Public Schools (After Remand), 406 Mich 224, 231; 278 NW2d 37 (1979), petitioner obtained tenure as a Michigan teacher in 1974, after having taught for two school years in the Cadillac Public School system. MCL 38.81; MSA 15.1981. In 1979, petitioner was hired by a consortium of three school districts which included Westwood, Inkster and Cherry Hill. Petitioner was hired for the 1979-80 school year as an advisor, a nonclassroom position, at a magnet school for gifted and talented children from the three participating school districts. The project was funded by the federal government until September of 1982, at which time it ceased operation.
About a month or two into the 1979-80 school year, petitioner was asked to perform some administrative duties which were expected to consume about ten percent of her time. Petitioner was paid an additional annual stipend of $2,000. The administrative duties delegated to petitioner were those of assistant director, a position new to the program. Petitioner testified that she spent approximately fifty percent of her time in this administrative capacity.
Petitioner worked without a contract during the 1979-80 school year, and was informed at the end of that year that she would not be rehired because of the economic need to reduce personnel. She was subsequently rehired as an advisor for the 1980-81 school year. During that year petitioner did not perform any of her former duties as assistant director.
At the close of the second school year, petitioner was again informed that she would not be rehired due to a reduction in personnel. At that time, the consortium was attempting to fill vacancies for the positions of director and assistant director, and petitioner submitted her name for consideration. The position of assistant director was subsequently filled by a nontenured teacher who had just completed her first year of probation.
Petitioner filed a petition with the State Tenure Commission, claiming that the districts violated the teacher tenure act, MCL 38.71 et seq.; MSA 15.1971 et seq., when they failed to hire her to fill, the vacant position of assistant director, a position for which she was certified and qualified. MCL 38.105; MSA 15.2005. The three districts defended separately. Following a hearing, the tenure commission held that, upon completion of the 1979-80 school year, petitioner had obtained permanent tenure in all three school districts, MCL 38.92; MSA 15.1992, and that she was tenured not only as a classroom teacher but also as an advisor and assistant director. Based on these findings, the commission concluded that the districts violated MCL 38.105; MSA 15.2005 when they hired a nontenured teacher to fill the position of assistant director during the last year of the program. Only respondent Inkster Public Schools appealed this decision to the circuit court, which affirmed.
On appeal to this Court, respondent argues that the commission erred in finding that all three districts were petitioner’s employers for purposes of determining tenure. According to respondent, the teacher tenure act was not intended to apply to employees hired by consortium projects such as the magnet school in this case. Under respondent’s interpretation of the act, teachers hired into multi-district programs would be denied the employment security afforded through tenure. Since the purpose of the teacher tenure act is to protect Michigan teachers from arbitrary employment practices, Wilson v Flint Bd of Ed, 361 Mich 691; 106 NW2d 136 (1960), we reject respondent’s argument on public policy grounds. We hold that the tenure act does apply to teachers hired for programs which are operated by multiple school districts, so long as the position for which the teacher is hired requires certification.
Respondent also challenges the commission’s finding that petitioner was employed by all three districts rather than just one. The commission reached this conclusion by applying its economic reality test, which involves analysis of six factors:
1) the power to select and hire, 2) payment of wages, 3) the power to dismiss, 4) the power to control the manner in which the work is performed, 5) whose work is being done, and 6) whether the work being done is an integral part of the claimed employer’s business.
We approve the commission’s use of this test in the instant context. Evidence introduced at the administrative hearing reveals that the magnet school was funded in large part by a federal grant, awarded on behalf of the three districts. The grant required a consensus of all three districts regarding expenditure of the funds. Staffing and salary decisions were made by a planning group comprised of the superintendents of each of the three districts. None of the districts by itself had the authority to hire or discharge employees or develop terms and conditions of employment for the staff of the program. The commission’s findings are supported by evidence on the whole record and its conclusion that petitioner was hired by all three districts is consistent with the law.
Respondent also challenges the commission’s award of tenure as assistant director, asserting that tenure, if any, earned by petitioner must be limited to the positions of classroom teacher and advisor. Respondent apparently never presented this issue to the tenure commission, as suggested in the following passage of its opinion:
Appellant claims that she attained tenure status as a classroom teacher, as an advisor, and as an assistant director by virtue of her employment with the Magnet Project during the 1979-80 school year. Appellant further asserts that because appel-lees were joint employers, she gained tenure status with each district. Appellees deny they are the employers and maintain that appellant could not acquire tenure in any capacity within the Magnet Project since it is not a controlling board or a school district within the definitions of the Tenure Act. Appellees have not addressed the question of what tenure status appellant may have attained should any or all of them be found to be her employer. [Emphasis added.]
We generally do not review issues raised for the first time on appeal. Balogh v Flat Rock, 152 Mich App 517, 520; 394 NW2d 1 (1985). Even where, as here, the question first presented on appeal is one of law, we require all of the material facts. Because we do not have before us the commission record (which apparently includes a set of "stipu lated facts”), we decline to review the commission’s decision regarding the type of tenure earned by petitioner. We point out that in Poland v Grand Ledge Public Schools Bd of Ed, 156 Mich App 691; 402 NW2d 70 (1986), another panel of this Court determined that a part-time tenured teacher is not entitled to priority consideration for a full-time vacancy within the same district. The. opinion in Poland, supra, lends support to the position taken by Marian Gibson, member of the tenure commission, in her dissent in the instant case.
Affirmed on the grounds presented.
Although not stated by the commission in its findings, testimony taken at the administrative hearing suggests that the position of assistant director was made into a full-time position and was filled by another individual during the 1980-81 school year.
Included in the circuit court record is a copy of the commission’s opinion and decision and a copy of the transcript of a hearing conducted before the commission on December 16, 1982, but no "stipulated facts.” | [
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Per Curiam.
Respondent, Clarence George Mar-tyn, Jr. appeals as of right from the June 24, 1986, order of the Oakland Probate Court terminating his parental rights as to Clarence George Martyn III under § 51(6) of the Michigan Adoption Code, MCL 710.51(6); MSA 27.3178(555.51)(6), for failure to provide regular support and substantially failing to contact or communicate with the minor child for a period of two years.
Respondent married petitioner Mary Dusseau in 1971. A son, Clarence George Martyn III (Butch), was born on May 9, 1972. A judgment of divorce was entered on February 22, 1974.
The divorce judgment awarded petitioner legal custody of Butch. The judgment provided respondent with visitation rights each Wednesday and Sunday, plus one overnight visit per month. When the child reached age two, respondent was allowed two overnight visits per month. When the child reached age three, respondent was allowed visitation for one week in the summer. After age five, respondent was allowed two weeks of visitation in the summer. Respondent was ordered to pay $15 per week in child support as well as the child’s medical, dental and hospital expenses.
On December 27, 1976, petitioner married Gary Dusseau. Butch had resided with petitioner prior to her remarriage. Afterward, Butch continued to reside with petitioner and Gary Dusseau through the termination hearing on May 8, 1986. For the duration of his marriage to petitioner, Gary Dusseau has provided the primary support for Butch.
Respondent provided some support for Butch from the time of his divorce through July 1, 1982. There were, however, frequent interruptions in payments and ten show cause hearings were scheduled. The earlier interruptions in support were triggered in part by periods of unemployment and, in part, by simple noncompliance. However, in 1982, respondent allegedly became disabled as a result of a 1970 back injury. In June of 1982, respondent left employment at a doctor’s clinic because it entailed heavy lifting. From June of 1982 until June of 1983, respondent received an unspecified amount in unemployment compensation benefits. From June of 1983 through the time of the termination hearing, respondent received $145 per month in general assistance benefits supplemented by $75 per month in food stamps. Respondent also earned some money in that time period from a newspaper route. It is undisputed that respondent paid no child support after July 1, 1982.
Respondent visited Butch sporadically between the time of his divorce and 1981. In part, the lack of visitation in that time period was due to petitioner’s objections to respondent’s taking Butch to his girlfriends’ homes. The problem was complicated by respondent’s discomfort in visiting his son in petitioner’s home, particularly after her remarriage. However, in 1981, respondent began living with Dianne Alexander, whose home was acceptable to petitioner for visits.
From 1981 until 1983, respondent saw Butch more frequently. Nevertheless, there were periods of two to six months without a visit even in this time period. Respondent remembered only three possible visits with his son in 1983: (1) Memorial Day, (2) Halloween; and (3) Christmas. Petitioner remembered only two visits between respondent and Butch in 1983—Memorial Day and Halloween. Dianne Alexander recalled that there were regular visits—every four to six weeks—until October of 1983. At that time, Alexander began working odd hours and her car was unavailable to respondent. It is undisputed that respondent did not visit Butch after October or December of 1983. Respondent did, however, remember calling Butch on one occasion.
On May 1, 1985, the Dusseaus filed a petition to terminate respondent’s parental rights so that Gary Dusseau could adopt Butch. Hearings were held on October 29, 1985, through May 8, 1986. On June 24, 1986, the probate court issued an order terminating respondent’s parental rights.
On appeal, respondent argues that the statutory requirements for terminating his parental rights were not proven at the evidentiary hearing. The statute at issue, § 51(6) of the Michigan Adoption Code, provides:
If the parents of a child are divorced, or if the parents are unmarried but the father has acknowledged paternity or is a putative father who meets the conditions in section 39(2) of this chapter, and if the parent having legal custody of the child subsequently marries and that parent’s spouse petitions to adopt the child, the court upon notice and hearing may issue an order terminating the rights of the other parent if both of the following occur:
(a) The other parent, having the ability to support, or assist in supporting, the child, has failed or neglected to provide regular and substantial support for the child or if a support order has been entered, has failed to substantially comply with the order, for a period of 2 years or more before the filing of the petition.
(b) The other parent, having the ability to visit, contact, or communicate with the child, has regularly and substantially failed or neglected to do so for a period of 2 years or more before the filing of the petition. [MCL 710.51(6); MSA 27.3178(555.51X6).]
A parent’s right to the custody of his or her children is a liberty interest protected by the Fifth and Fourteenth Amendments to the United States Constitution. In re Gentry, 142 Mich App 701, 705; 369 NW2d 889 (1985). The right to custody is not an absolute right, however, and may be terminated. Doe v Oettle, 97 Mich App 183, 186; 293 NW2d 760 (1980). A petitioner in an adoption proceeding must prove by clear and convincing evidence that termination of parental rights is warranted. In re Colon, 144 Mich App 805, 813; 377 NW2d 321 (1985). The standard of review in termination of parental rights cases is the "clearly erroneous” standard. In re Cornet, 422 Mich 274; 373 NW2d 536 (1985). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, after examining all of the evidence, is left with a definite and firm conviction that a mistake has been made. In re Riffe, 147 Mich App 658; 382 NW2d 842 (1985), lv den 424 Mich 904 (1986).
Respondent first challenges the probate court’s findings regarding subparagraph (a) of the statute quoted supra—his failure to provide support payments. According to respondent, he was unable to provide support. Indeed, there is some evidence of record indicating that respondent was unable to provide even for himself. On the other hand, it is undisputed that respondent was under a continuing order to pay $15 per week in child support for Butch. It is also undisputed that respondent paid no support after July 1, 1982.
As we have previously explained:
The Legislature is presumed to know of and legislate in harmony with existing law. Rochester Community Schools Bd of Ed v State Bd of Ed, 104 Mich App 569, 578; 305 NW2d 541 (1981). In Michigan a parent who cannot comply with a child support provision in a divorce decree may petition the circuit court for a modification. The circuit court is statutorily empowered to modify orders for child support upon a showing of a change in circumstances. MCL 552.17; MSA 25.97; Jacobs v Jacobs, 118 Mich App 16; 324 NW2d 519 (1982). In fashioning a support order or a modification, the court must consider a number of factors, including the noncustodial parent’s income and ability to pay. Vaclav v Vaclav, 96 Mich App 584; 293 NW2d 613 (1980); Cochran v Buffone, 137 Mich App 761; 359 NW2d 557 (1984). Thus, ability to pay is already factored into a child support order, and it would be redundant to require a petitioner under the Adoption Code to prove the natural parent’s ability to pay as well as that parent’s noncompliance with a support order.
For the above reasons, we hold that, in cases where a child support order has been entered, MCL 710.51(6)(a) may be satisfied by showing that the natural parent has "failed to substantially comply with the [support] order, for a period of 2 years or more before the filing of the petition.” [In re Colon, supra, 811-812.]
Thus, under subparagraph (a) as construed in Colon, the probate court was entitled to find a failure to support.
We also observed in Colon that the language of § 51(6) of the Adoption Code is permissive rather than mandatory:
[T]he court upon notice and hearing may issue an order terminating the rights of the other parent if both of the following occur .... (Emphasis added.) [In re Colon, p 812.]
Thus, we concluded that the probate court had discretion to consider the Colon respondent’s reasons for violating the support order and, had respondent satisfactorily explained the nonsupport, the probate court might have declined to terminate his parental rights.
According to respondent, the probate court erred by finding nonsupport when he, unlike the Colon respondent, offered satisfactory reasons for failing to comply with the order for support. This argument misconstrues our obiter dictum in Colon by suggesting that the probate court was obliged to consider respondent’s reasons for noncompliance with the order for support. As we noted in Colon, the statute is permissive—the probate court has discretion to consider the reasons for noncompliance with a support order. Conversely, as we now hold, the probate court has discretion to disregard the respondent’s reasons for violating the support order. Since the probate court’s decision to do so was an exercise of discretion, rather than a finding of fact, we will review it on an abuse of discretion standard, rather than a clearly erroneous standard. Noting that the medical evidence underlying respondent’s claim of disability is equivocal at best and further noting that respondent had failed to comply with the support order during some periods of employment, we are unable to find an abuse of discretion. See Spalding v Spalding, 355 Mich 382; 94 NW2d 810 (1959) (defining "abuse of discretion”). Therefore, for the purpose of this appeal, we find no error in the probate court’s failure to consider respondent’s reasons for not providing support.
Respondent also challenges the probate court’s findings regarding subparagraph (b), § 51(6) of the Michigan Adoption Code—his failure to regularly and substantially visit or communicate with Butch. Again, it is undisputed that respondent failed to visit and communicated by phone on only one occasion after October of 1983. However, respondent argues that, because his visits between May 1, 1983, and October, 1983, were within two years of the filing of the petition, the probate court erred by concluding that there had not been substantial visitation or communication. We disagree.
Respondent could only recall that he "possibly” visited Butch three times between May and December of 1983. Even if we gave credence to the testimony of Dianne Alexander, that there were visits every four to six weeks between May and October of 1983, respondent would only have visited his son five times in two years. The probate court did not give credence to Dianne Alexander’s testimony, but instead cited petitioner’s testimony that respondent visited only twice between May and October of 1983. Given that the factual issue was one of credibility of witnesses, and given further that petitioner’s testimony was by all appearances credible, we are unable to say that the probate court erred in doing so. Certainly we are unable to say that the probate court clearly erred in giving credence to petitioner’s testimony. In re Riffe, supra. We are therefore obliged to affirm the probate court’s finding in this regard. In re Cornet, supra. We conclude that respondent visited his son only twice in the two years preceding the filing of the petition to terminate parental rights.
The only remaining question is whether respondent "substantially failed” to visit when he visited only twice in two years. We acknowledge that the phrase "substantially failed” has not been previously construed. We also express some doubt that the phrase can be reduced to a specific number of visits within two years. We would, for instance, be less likely to consider a specific number of visits late in the two-year period to be "substantial failure.” We would also be less likely to consider a specific number of visits "substantial failure” if they required the respondent to overcome significant legal, physical or geographic obstacles. Here, however, respondent had not visited Butch at all for the last twenty months of the two-year period. Furthermore, although respondent claimed that he had no transportation, he acknowledged an ability to attend regular Jaycee meetings by hitchhiking. In fact, respondent testified that he had been in the City of Pontiac, where the Dusseaus resided, once every three to four months in the 1983-85 period. Furthermore, respondent could offer no reason for failing to call Butch other than the fact that it would have been a toll call. Finally, we note that respondent suffered no legal obstacles to more frequent visitation. Under these circumstances, we believe that two visits and one phone call in two years is a substantial failure to visit, contact or communicate with a child. We therefore affirm the probate court’s holding for petitioner, terminating respondent’s parental rights.
Affirmed.
We are aware that in In re Colon, 144 Mich App 805, 814; 377 NW2d 321 (1985), a panel of this Court held that eight to eleven visits in two years was a substantial failure to visit, contact or communicate, but the Colon Court apparently treated the issue as one of fact. | [
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Champlin, J.
This suit is a prosecution of the defendant for violation of the provisions of sections 1 and 9 of Act 259 of the Laws of 1881, before Amos L. Hill, a justice of the peace in the village of Manistique, in the county of Schoolcraft, upon the complaint of William F. Riggs. The defendant was tried by a jury before the justice, a verdict of guilty was rendered, and upon the verdict the justice rendered a judgment that the defendant pay a fine of $25 and costs of prosecution, of the amount of $28.21, and that he be imprisoned in the county jail for a period of sixty days from the 23d day of June, 1883, and in case of said fine and costs not being paid, that he should be further detained in said jail until the same was paid, provided the whole term of imprisonment shall not exceed ninety days from and in. eluding the 23d day of June. The suit was removed by certiorari to the circuit court for the county of Schoolcraft, and the judgment of the justice was affirmed by the circuit court, and was ordered to be executed. The suit is brought to this Court by writ of error.
The errors relied upon here, are : first, the insufficiency of the complaint; and second, the admission of testimony of the witness M. H. Quick, called on the part of the prosecution.
The affidavit upon which respondent was arrested reads as follows:
“ State of Michigan, County of Schoolcraft — ss: The complaint of William F. Riggs, prosecuting attorney of said county, taken and made before me, Amos L. Hill, a justice of the peace of Manistique in said county, who being duly sworn says, that heretofore to wit, at the village of Manistique, in the township of Manistique and in the county aforesaid, on the 5th day of June, A. I) 1883, and on divers other days and times between that day and the 7th day of June, 1883, at the village of Manistique aforesaid, divers persons appeared in the streets of said village intoxicated; that there are no person or persons authorized by law in said village of Manistique to sell, furnish, give, or deliver to such persons, so intoxicated as aforesaid, at retail, to be used as a beverage, any of the liquors specified in section one of Act No. 259 of the public acts of the Legislature of the State of Michigan, passed at the regular session of A. D. 1881 ; that Dennis Heffron pretends to be the proprietor of the Arcade saloon in said village and to be a dealer in said liquors, at the times and place aforesaid ; that this affiant has good reason to believe and does believe that said Dennis Heffron, at the times aforesaid and at the place aforesaid, was engaged in and did carry on the business of selling, furnishing, and delivering to divers persons at retail and as a beverage, spirituous and malt liquors without first having executed and delivered to the county treasurer of said county, the bond required by sections one and nine of said act; he, said Heffron, then and there not being a druggist, contrary to the form, etc. Wm. F. Riggs, Prosecuting Attorney.
Subscribed and sworn to before me this 14th day of June, 1883.
A. L. Hill, Justice of the Peace.”
This affidavit, within the repeated rulings of this Court, as well as the most elementary principles of criminal law, is entirely insufficient to confer any jurisdiction upon the jus tice to issue a warrant for the arrest of the respondent. Bish. Cr. Pro. §§ 716-719 ; Com. v. Lottery Tickets 5 Cush. 369; Brown v. Kelley 20 Mich. 27; People v. Judge of Wayne Circuit 36 Mich. 334; Swart v. Kimball 43 Mich. 451. The complaint must set up the facts constituting the offense on the hiowledge of the person making the complaint, and if he does not know them, other witnesses must he examined who do know them; and no person can be arrested on the mere belief of the person making the complaint. The liberty of the citizen is not held upon so slender a tenure as that. Badger v. Reade 39 Mich. 774; People v. Recorder of Albany 6 Hill 429; Proctor v. Prout 17 Mich. 473.
But there is another objection which is equally fatal to the conviction of respondent. Neither the complaint nor the warrant, which follows the language of the complaint, charges any offense known to the laws of this State. The offense charged in the warrant, on belief, is “ that said Dennis Heffron, at the times aforesaid, and at the place aforesaid, was engaged in and did carry on the business of selling, furnishing and delivering to divers persons, at retail, and as a beverage, spirituous and malt liquors without first having executed and delivered to the county treasurer of said county the bond required by sections one and nine of said Act.” The first section of the Act makes it unlawful for any person (except druggist) to sell, furnish to, or give any liquors, etc., without first having given bond to the county treasurer, as provided in the Act; and section nine enacts that every person engaged in the sale of any spirituous, etc., liquors, except druggist, shall execute the bond provided by the section. The offense, therefore, does not consist in engaging in the business, but the act of selling, furnishing or giving, and it is necessary to allege some specific act of selling, etc., to some person. This point was distinctly decided at the January term of this Court, in the case- of People v. Minnock 52 Mich. 628, and it is unnecessary to add anything to what is there said.
We think the respondent should have made the specific objections to the affidavit and warrant when brought before the justice, which would probably terminate the case there, instead of putting the People to the expense of following the proceedings to this Court; and ordinarily where a party pursues this course we should not feel inclined to interfere ■on certiorari; but as it is a case where personal liberty is involved, and where, perhaps, the conviction and judgment would not justify imprisonment in the execution of the judgment, we think it best to set aside the judgment and quash the proceedings, and it is so ordered. ' .
Campbell, J. concurred.
Cooley, C. J.
As the defendant pointed out no objection to the complaint in the justice’s court, I think the writ of certiorari should not have been sustained for the purpose of inquiring into its sufficiency. But under the circumstances-of this case I assent to the order proposed to be now entered.
Sherwood, J. concurred. | [
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Cooley, C. J.
The only question in this case is whether the defendant is liable upon a promissory note under the following circumstances:
On a day prior to February 27, 1876, Samuel B. Wessels, accompanied by this defendant, went to the house of Lawton B. Pulling in Ingham county, and arranged for a loan of $1200 from him, for which their joint note was to be given. A note was accordingly drawn and signed by them February 27, 1876, which was made payable to Pulling or order, and dated on that day, which was Sunday. On the next day Samuel B. Wessels went to Pulling with the note and delivered it to him. The money to be loaned on it was received. Pulling died soon after, and the note was transferred by the administrator to plaintiff.
Defendant contends that he is not liable because the note was executed on Sunday, and it does not appear that he-gave authority for its delivery at any other time. And authority to deliver, given on Sunday, would be equally void with the execution on that day.
The point is not well taken. Pulling performed no act in relation to the loan or the note on Sunday, and it does not appear that he knew any one else was to do so or did do so. He made the loan on a week day and received the note on another week-day. And he received it from one of the two parties who was to give it, and he had a right to assume that that party had proper authority from the other to make the-delivery. The presumption of such authority is, under the circumstances, conclusive.
The judgment in the circuit court was for the plaintiff,, and it must be affirmed.
The other Justices concurred. | [
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Campbell, J.
This case was tried and disposed of below upon the same principles and chiefly upon the same facts as Wildey v. The Same Defendants 52 Mich. 447, decided by this Court at a recent term.
IJpon examining the record we find that it is governed by the same rules of law and cannot be distinguished from that case. It is therefore not necessary to go at large into the discussion of the questions already disposed of.
The judgment must be reversed and a new trial granted.
Cooley, C. J. and Champlin, J. concurred.
Sherwood, J.
I do not concur with my brethren in this case for the reasons given by me in the Wildey Case, referred to. | [
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Sherwood, J.
The defendant owned a lot in the city of Negaunee, and agreed with one Bellieumer to erect and complete a house thereon except painting and mason work. In pursuance of the contract the house was built and accepted by the defendant, and thereafter occupied by him as his home. When defendant moved into the house about $800 had been paid to the builder, leaving a balance due of about $800 upon the contract to Bellieumer, which he assigned to the complainants. To secure the payment of this sum the defendant gave the following instrument to the complainants;
“ Whereas, I, Samuel Carey, of the city of Negaunee and State of Michigan, am indebted to Edward Girzikowsky and Isora M. Yoelker, copartners, of the city of Negaunee, in said county, in the sum of eight hundred and eighty-five dollars, being the amount remaining unpaid upon a certain contract, not in writing, heretofore made between said Samuel Carey and Mitchell C. Belheumer, of the city of Negaunee, by,the terms of which said Belheumer agreed to build a certain, frame dwelling-house for said Carey for the sum of sixteen hundred dollars, to be completed, ready for occupancy so. far as the carpenter-work was concerned, and to furnish all. the material for the same, for all of which said materials, and the building of said dwelling-house, the said Samuel Carey agreed to pay to said Mitchell C. Belheumer the sum of' twelve dollars per month until the sum due for the work and materials as furnished, as aforesaid, is fully paid; and
Whereas, the said Girzikowsky and Yoelker have purchased said indebtedness and claim against said Carey and are now the owners thereof; and whereas, the said Girzikowsky and Yoelker desire the said claim and indebtedness, shall be and constitute a lien upon said dwelling-house and the lot upon which said dwelling-house stands:
Now, therefore, know all men by these presents: That I,, the said Samuel Carey, in consideration of the premises, hereby agree that the said sum of eight hundred and eighty-five dollars shall be and constitute a lien upon said dwelling-house and lot until fully paid, in accordance with the terms of the said agreement with the said M. C. Belheumer-.
It is mutually understood and agreed by and between the parties hereto, that in case the said Samuel Carey shall pay said indebtedness within one year from the date hereof, then, and in that event, said Carey shall be entitled to a. deduction of seven per cent, on the whole amount now remaining unpaid. It is also mutually understood and expressly agreed that in case the said Samuel Carey shall not pay said sum of eight hundred and eighty-five dollars within one year from the date hereof, then, and in such event, the said Samuel Carey shall, from and after one year from the date hereof, pay to said Girzikowsky and Yoelker an annual interest of seven per cent, on the amount remaining unpaid and due, from and after one year from the date hereof.
In witness whereof, the parties have hereunto set their hands and seals this 11th day of December, A.. D, 1874.”
This instrument was signed and duly acknowledged by the parties, and recorded in the office of register of deeds of Negaunee county. After the money became due according to the terms of the instrument, and not being paid, the complainants filed their bill of* complaint to enforce the lien upon the lot and house created under the agreement, and foreclose the same by sale of the property.
The defendant filed a plea to the bill, setting forth that defendant, at the time of executing the instrument under which the lien is claimed, was a married man, and owned and lived in the house with his wife, and ever since had so occupied the same with his wife, and that they had always occupied the same as their homestead, and that the same was not worth over $1500; that his wife did not sign the paper writing under which the lien is claimed; neither was the indebtedness claimed for purchase money of said property, which consisted of one lot in the city of Negaunee, and for these reasons the instrument is void so far as it is sought to create a lien upon the premises. Also, that the defendant’s wife is a necessary party, and for that reason this suit cannot be maintained. General replication was filed to this plea, and evidence was taken substantially sustaining the facts stated therein, clearly showing the homestead character of the property and the wife’s interest therein. These are the material facts raised by the plea. It is conceded that if they are proved the wife is'a proper party to the proceeding, and the bill cannot be maintained. That proof has been made.
The other questions raised are not properly before us upon this record, and cannot be considered.
The bill must therefore be dismissed with costs.
The other Justices concurred. | [
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Champlin, J.
Plaintiffs.are minors and children of John Monaghan, deceased. In 1876, John Monaghan being the owner of eighty acres of land, conveyed the north half thereof to his father Patrick Monaghan, but remained in possession and lived upon it with his family until his death, which occurred in the early part of the year 1879. On the 6 thday of January of that year he made his last will, by which, after directing the payment of his debts, he directed his executors to sell whichever forty acres of his land would sell the best, and pay first the mortgages then against his place, and then certain debts which he named. He also stated in his will: “The other forty acres to remain.as a home for my wife and children, unless my wife Catharine should marry; then property to be kept for my children.” He m’ade no disposition of his personal estate if he had any. January 31st, 1880, Patrick Monaghan conveyed the north forty acres to the minor children of John Monaghan, and they with their mother, Kate Monaghan, continued to reside in the house upon this forty acre tract until it was destroyed by fire, in September, 1880.
On August 4th, 1880, Kate Monaghan applied for insurance to the agent of defendant. The application was made in behalf of Kate Monaghan, the mother, and Sarah, Jennie and "Willie Monaghan, minor heirs. To the question, “ What is your title to or interest in the property?” the answer was, “Willed.” The application was made out by the agent from information derived from Mrs. Kate Monaghan. The defendant issued a policy 'by which in consideration of $14.70, it insured Kate Monaghan, Sarah, Jennie and Willie Monaghan, minor heirs, against loss or damage by fire or lightning to the amount of $1650, as follows:
$400 on dwelling-house.
$300 on household furniture therein.
$200 on family provisions and wearing apparel therein..
$275 on barn No. 1.
$350 on hay and grain in barn No. 1.
$ 75 on farming utensils in said barn.
$ 50 on harness therein, wagons and sleighs therein.
$1650, total.
The policy contained the usual stipulations and conditions relative to proof of loss, and of forfeiture in case of any misrepresentations, concealment, fraud or false swearing in any statement or affidavit in relation to loss or damage. A fire occurred about the middle of September1, 1880, which destroyed the dwelling-house, of which the company was duly notified. It is claimed by the defendant that on the second day of October, 1880, Mrs. Kate Monaghan made an affidavit in which she set forth in detail what property belonging to her was saved from the fire, and what was destroyed thereby, and it claims that in this affidavit she knowingly, and with intent to defraud the company, falsely swore that certain articles of personal property belonging to her were entirely destroyed by the fire, among them a certain sewing-machine; and on the same day, as she claims, by threats of prosecution by the agents of defendant, and by false statements to her, defendant obtained a release, under seal, of all actions against defendant, which was signed by her, and as the guardian of the minor heirs of Joh-rr'Monaghan, deceased; and thereafter the defendantTef used to settle or pay any loss occasioned by the fire.
On the 17th day of November, 1880, James Murphy was duly appointed the guardian of the minors, and on the 18th of December following he made out, in behalf of the minors, and forwarded to the company, proofs of loss of the dwelling insured by the policy. In this proof of loss it is stated that Kate-Monaghan, being the mother of said minor heirs, had .an interest in the personal property thereby insured, and the .said minor heirs being the owners of the real estate and -dwelling-house therein insured, and that the building insured belonged to the said minor heirs of John Monaghan, deceased, and that said Kate Monaghan had no interest therein save, possibly, a dower interest or right of possession during their minority, and that she owned the personal property insured, and no other person had any interest in said property. It then states how it was occupied at the time of the fire, when it occurred, the amount of the loss on the dwelling, and that the fire did not originate by any act, design or procurement on his part, or in consequence of any fraud or evil practice done or suffered by any of said minor children or Kate Monaghan. On the 17th day of March, 1881, Kate Monaghan assigned to her children, Sarah, Willie and Jennie, all of her right, title and interest in and to all claims against defendant, by reason of the issuing of the policy, and all her rights thereunder. The loss not having been paid within the sixty days after the guardian furnished proofs of loss, he commenced this action to recover the amount insured on the dwelling.
The defendant contends that there is no valid contract of insurance between the parties, for the reason that the minors were incapable of entering into such contract; that contracts of insurance must be mutual, and if the defendant could not have enforced payment of the premium,' neither could the company be compelled to perform its contract to indemnify. In the case of New Hampshire Mut. Fire Ins. Co. v. Noyes 32 N. H. 345, it was held that an infant who had insured his stock of goods was not liable to the company on his premium note, as for necessaries, where the infant interposed the plea of infancy; but the contract of insurance was not held void. Many contracts of infants are not void, but voidable merely, in which case infancy is a personal privilege of the infant of which no one can take advantage but the infant himself while living. Contracts which are manifestly for the benefit of the infant are not void, but voidable merely. The contract of insurance is of this class, and although entered into between the defendant and the minors jointly with their mother is binding on the defendant. There was no fraud or concealment practiced upon the defendant with respect to the infancy of the parties it was contracting with ; the policy describes them as minors. This defense is not open to the company.
The circuit judge viewed the contract as one entered into between Kate Monaghan and the defendant for the benefit of herself and children. He instructed the jury that the three children were minors and of such tender years that they were incapable of entering into the contract; that the contract was between her and the insurance company for the benefit of the children, with reference to the property named in the policy, and should be construed as a promise on the part of the insurance company to pay to the beneficiaries named in the policy, as their interests might afterwards appear in case of loss, such sums as they might be entitled to, not exceeding the amount insured. We can see no reason for giving to the policy a different meaning than that which is plainly expressed in the instrument. The application for the insurance was made by Kate Monaghan, the mother of the children, for herself and for them. She was their natural guardian, and at this time there was no guardian appointed over their estate. From her relationship to the children a sufficient authority may be presumed to qualify her to make the application and to pay the consideration to the company for their promise to indemnify. The general rule undoubtedly is that a plaintiff in an action on a simple contract must be the person from whom the consideration of the contract actually moves, and that a stranger to the consideration cannot sue on the contract. Mellen v. Whipple 1 Gray 321. But whenever there is a privity of contract between the plaintiff and the defendant, as when the promise is made directly to the .plaintiff, although the consideration for the promise proceeds from a stranger, the defendant is liable to the plaintiff in an action upon the contract because of such privity.
In this case there was such privity of contract. The promise was made, by the company directly to Kate Monaghan and the plaintiffs jointly, and no reasons exist why the promisees may not maintain an action upon the policy. The circuit judge rigidly held that the plaintiffs could maintain the action, and it is immaterial that he assigned an erroneous reason therefor. The defendant was in no wise prejudiced thereby.
A juror was called and sworn touching his competency, and upon examination by counsel for plaintiff stated that he liad a conversation that day with the agent of defendant, who told him there was a case, he thought, of incendiarism, and that they were talking about another case previous to that, which happened in East Saginaw, that he was a little concerned about, and he told the agent he thought he had not done right about that; that he noticed counsel for plaintiff pass him, and the agent quit talking until he had passed up stairs, and then immediately commenced talking about the case after he had passed. Whereupon the counsel for plaintiff challenged the juror for cause, and against the objection of the defendant’s counsel the court excused him from sitting. We think the court was acting entirely within the limits of its discretion in sustaining the challenge. Atlas Mining Co. v. Johnston 23 Mich. 36; People v. Carrier 46 Mich. 444.
Another juror being examined on oath as to his competency, was asked by defendant’s counsel: “Suppose, in this case, after the evidence is all introduced, you should believe that it was evenly balanced, so that there was as much for the plaintiff as for the defendant, which way would you be inclined to lean — against or in favor of the company?” This was objected to by the plaintiff’s counsel, for the reason that he would probably be guided by the court. Whereupon the court said: “Of course, the party that has affirmation of an issue must produce a preponderance of evidence, and if the evidence was evenly balanced they would be obliged to find against the party that had the affirmative of the issue. I don’t think that the question is proper. I don’t permit the juror to answer it.” The same question was put to another juror, and the court told the juror that he need not answer it. These questions were put to the jurors by counsel for defendant for the purpose of determining what peremptory challenges he would avail himself of. The question was well calculated to call from the juror the bias of his mind toward the party, and to detect whether he entertained any prejudice respecting him.
Wherever there is an existing bias or prejudice it should disqualify, for prejudice is a state of mind which, in the eye of the law, has no degrees. People v. Reyes 5 Cal. 347. It is the evident intent of the law to secure a jury that shall come to the consideration of the case unaffected by any previous judgment, opinion or bias with respect either to the parties or subject-matter in controversy, audit is important to the rights of parties that they may be permitted inquiries which may be the means of discovering facts which will justify3, the exclusion of a juror. The success of a challenge depends upon eliciting such information from the juror himself, as well as from other sources, as to his state or condition of mind, as will enable a judgment to be formed bj3 the court as to his competency. For this purpose the law subjects the juror to an examination on oath, when questions are put to' test his competency. If the juror had been permitted to answer the question, and he had replied that he would, in the case put, lean in favor of the plaintiff or against the defendant, can it be doubted that he could have been challenged for cause ? He would have shown himself to have been disqualified, and no statement from him that he could render an impartial verdict would have removed the disqualification. “Nor can it be said that instructions from the court would correct the bias of jurors who swear that they incline in favor of one of the litigants.” Chicago & Alton R. R. Co. v. Adler 56 Ill. 344. A party has a right to a certain number of peremptory challenges, and in order to exercise this right understandingly it is proper for him to ascertain as nearly as practicable the disposition of the juror toward him, and toward the subject-matter in controversy; and any inquiry within reasonable limits which tends to bring to light any bias or prejudice entertained by a juror is proper. The questions propounded were proper, and the court erred in not permitting the juror to answer. Chicago & Alton R. R. Co. v. Buttolf 66 Ill. 347.
It is assigned as error that the court, against defendant’s objections, admitted evidence tending to show the house was on land deeded to the plaintiffs, for the reason that their title to the property is averred to be by will, and proof of title by deed does not tend to support the declaration. There are two counts in the declaration. The first does not aver the source of title of the plaintiffs, but alleges that they were the absolute owners of the premises destroyed; and the second count alleges that they are the absolute owners, and that they derived their title through the last will of their father. We do not think the objection well taken. The deed was admissible under the first count. Had both counts alleged the derivation of their title by will, it would not have been error to admit proof of title by deed. The fact of ownership was the material question. Any competent evidence to prove their ownership was admissible; and if the declaration set out their source of title with unnecessary particularity, it was amendable on the trial, or even after verdict.
The same remarks apply to the objection that the application stated that the title of the insured was by will, -when the proof was that it was by deed.
The court committed no error in not permitting the witness Wrege to be asked what. Mrs. Monaghan’s mother said to one of the plaintiffs in the barn, while the witness was searching for articles concealed therein. The witness had been permitted to state what the plaintiff said on that occasion, and the record does not disclose how it could be material to show what Mrs. Monaghan’s mother said.
Mrs. Monaghan had sworn in her affidavit to the destruction of the sewing-machine by the fire, and defendant proved by a witness, who was a neighbor of Mrs. Monaghan, that she was at the fire and saw the sewing-machine standing on the ground near where the fire was burning, and the next morning Mrs. Monaghan’s hired man brought the sewing-machine to witness’ house and left it there, and she was asked: “ What did he say when he brought it there ? ” Counsel for plaintiffs objected to it as incompetent, irrelevant and immaterial. The record proceeds:
By the Court. It would not be proper if she were on trial for arson.
Defendant's Counsel. She is not on trial for arson. ,
The Court. The course of testimony is the same.
Defendants Counsel. I propose to show what the hired man said when he brought tlie sewing-machine to the house.
The court refused to allow the question to be put or answered.
To the remarks of the court above stated, and to the ruling of the court, defendant duly excepted. The examination of the witness then proceeded, and the following occurred:
Question. After the machine came to your house did you see Mrs. Monaghan? ■
Answer. I don’t remember seeing her.
Q. Let me see if I can refresh your recollection. Did you have any conversation with her after the fire, in which she told you not to say anything about the- machine being at your mother’s?
A. No, sir.
Q. Did you have any such conversation with any one ? (Objected to as incompetent and immaterial by plaintiff’s counsel.)
By the Court. The plea charges her with the burning, as I understand it. The proof is the same as if an information was filed against her for burning it down. In that ease the statements made by any other persons are not evidence.
Defendants Counsel. If they were her agents ?
The Court. That must first be shown.
Defendants Counsel. I think we have shown it.
By the Court. The court holds that there is not sufficient testimony to show that the hired man was the agent of Kate Monaghan at the time of the fire; therefore the statements are immaterial.
To which ruling, and to the remarks of the court, defendant, by its counsel, did then and there except.
At this stage of the case the defendant had introduced evidence ‘tending to prove that the fire was first reported to defendant’s agent by the hired man;-that Mrs. Monaghan told the agent that the hired man first discovered the fire ; that of the contents of the house all that was saved was a cooking stove, clock, some chairs and a trunk with some clothing in it; that a sewing machine that cost $85 was burned, and all tlie other articles insured, with the above exceptions; that afterwards she and the hired man made affidavits that all that was saved from the fire was 1 cook stove, 1 sitting-room stove, 6 wood-seat chairs, 1 clock, 1 lantern, and a few articles of children’s clothing worth not to exceed one dollar, and that articles were destroyed which cost $860.75, including the sewing machine, carpets, etc. Defendant had also given evidence tending to prove that after Mrs. Monaghan and the hired man had sworn to the affidavits, Mr. ICinney made an appointment with her to meet her later in the day, and that he, with one Wrege, a deputy sheriff, then went to the premises for the purpose of searching for articles claimed to have been lost; that Mr. Kinney and Wrege found concealed in a barrel of oats a carpet; under the straw in the bay of the barn they found a bureau with the drawers locked full of linen and clothing; in a barrel covered up with straw they found a feather bed, and in a box under the straw they found a quantity of Mrs. Monaghan’s clothing and other articles; that they also found covered up with straw, a table, bedstead and other articles; that in an out-door cellar they found a part of the doors and windows of the house that had no appearance of having been burned, and a large number of other articles; that they made a list of all the articles found.
The witness should have been permitted to state what the hired man said when he left the machine. It accompanied and was part of the act of the man in leaving the machine, and was relevant upon the question of false swearing by the hired man. The other question, as to her having had a conversation with any one, was preliminary in character, but, without some proposition showing the materiality of the proposed proof, was rightly excluded.
We do not think that the remarks of the court relative to the course of the proof being the same as if Mrs. Monaghan was on trial for arson, are subject to the exception taken by defendant. The court evidently did not refer to the amount of proof required to sustain the plea., but that it was substantially the same line of proof required as if she was being tried on the charge of arson. If an inference could be drawn from the language used that might, perhaps, have led the jury to infer that the defendant was required to have produced the same conclusive evidence of guilt that would be essential if Mrs. Monaghan had been on trial for arson, the exception would have been well taken. Farmers' Mutual Fire Ins. Co. v. Gargett 42 Mich. 292. But this is not the import of the language used and no inference can be drawn from it that the defendant was required to produce evidence of her guilt which should convince the jury beyond a reasonable doubt.
Defendant also gave evidence tending to prove that Mrs. Monaghan caused the most of the. furniture and other articles in the house to be removed therefrom and concealed in the barn and elsewhere, before the fire; that part of the doors and windows belonging to the house were taken off the house and concealed before the fire; and gave evidence tending to prove that the affidavits Mrs. Monaghan and hired man made were false, known to be so by them, and that they were made to defraud the defendant; and that the house was purposely burned by Mrs. Monaghan and the hired man, Rory, to defraud the defendant.
Defendant further gave evidence tending to prove that after its agents had found the property concealed, as before stated, Mr. Kinney told Mrs. Monaghan of what they had found; charged her with burning the house; that she admitted it; that she was then told the company would not pay her anything, and asked to sign a release, which she did, (said release was received in evidence,) and she was told to bring her policy to the office and surrender it; that subsequently she had her hired man come to the defendant’s office in East Saginaw and deliver the policy to Mr. Kinney. Defendant further gave evidence tending to prove that Mrs. Monaghan told Kinney that she was guardian for the children.
It was conceded by plaintiff’s counsel that the sewing machine the hired man took to Mrs. Hemmeter’s after the fire was the same sewing machine named in the affidavit of Mrs. Monaghan.
The plaintiffs introduced evidence tending to rebut the case made by the defendant. After the evidence was closed, the counsel for defendant ashed the court to submit to the jury several questions of fact. The court selected five questions from the number submitted, and refused to submit the remainder. Those which were submitted, and the answers thereto as found by the jury, were as follows:
“ First Interrogatory. Did the plaintiffs, or any of them, in person apply for and obtain the insurance policy in evidence ?
Answer. No.
Second Interrogatory. At the time the policy in evidence was issued were each of the plaintiffs under the age of 21 years?
Answer. Y es.
Third Interrogatory. What was the age, at the time the policy was issued, of Willie, of Sarah, of Jennie ?
Answer. Sarah, 4; Willie, 7; Jennie, 9.
Fourth Interrogatory. When Kate Monaghan, now Mrs. McNamara, applied for the insurance, did she tell Mr. Moffit that she and the children named in the policy owned the property' insured?
Answer. Yes.
Tenth Interrogatory. Did Kate Monaghan, now Mrs. McNamara, purposely cause or procure the house to be burned for the purpose of defrauding the defendant ?
Answer. No.”
All the other questions the court held to be immaterial.
The following are among the questions rejected:
14. Did Kate Monaghan, now Mrs. McNamara, for the purpose of getting paid for property she knew had not been burned, falsely represent to the agent of defendant, Mr. Kinney, that such property was destroyed by the fire which destroyed the house ?
15. Did Kate Monaghan, now Mrs. McNamara, swear to ' the truth-of the facts stated in the paper in evidence, purporting to be her affidavit, sworn to before D. G-. Peck, on the second day of October, 1880 ?
16. Did not Kate Monaghan, now Mrs. McNamara, know at the time she made the affidavit, that what she swore to therein concerning the loss of the articles named therein was false ?
17. - Did not Kate Monaghan, now Mrs. McNamara, know that she was swearing falsely in stating that the household furniture and other articles named in her affidavit had been burned ?
18. .Did she not know she was swearing falsely in stating that the policy was burned?
19. Did not Kate Monaghan make the affidavit for the purpose of cheating and defrauding the defendant?
These questions were material and proper if the plaintiffs are affected by the wrongful acts of Mrs.. Monaghan after the fire. And this depends again upon the question whether the contract is divisible.
When the insurance was obtained nothing was said as to the precise nature of the interest, whether separate or joint, in the property insured. Nor was it necessary. The policy was good for all, whether their interests were joint or several. Castner v. Farmers’ Mut. Fire Ins. Co. 46 Mich. 18. But in this case the premium was not ■ apportioned, but was paid as a whole as a consideration of the whole insurance upon the property. We can see good reasons in this case for holding the contract for insurance to be joint and not several, which might, and probably did, influence the defendant in entering into it. Mrs. Monaghan was the only adult party among the insured, and the one upon whom the defendant would rely to make the proper proofs of loss in case of fire; and the only one it could hold to perform the conditions of the policy. We are clearly of opinion that no action could be brought by any of the insured, less than the whole, to recover a loss under this policy, unless in a case where the interests of one had been assigned to the other joint contractors. And if the right of action has become barred as to one of the joint contractors, it has to all of them. It follows that the plaintiffs, by obtaining an assignment of Mrs. Monaghan’s claim and interest in the policy, can stand in no better position than they would be in had the action been brought in the names of all the joint contractors; and whatever would be a defense were she one of the plaintiffs, is equally available when suit is brought by her assignees. Any attempt on her part to defraud the company by not complying with the con dit-ions of the policy, or any false swearing or concealment or fraud in reference to the proofs of loss, would defeat a recovery.
The questions above mentioned were material and proper under the view we have taken of this ease. The circuit judge instructed the jury that the contract of insurance was divisible, and if they found that the plaintiffs were the sole, unconditional owners of the forty acres upon which the house stood, the promise of the company was to indemnify them for their several interests in it; and if Mrs. Monaghan did not set fire to the building, or cause it to be done, but, after this liability became to a certain extent fixed upon the company by the burning of the building, she conceived the idea that she could obtain more for the furniture, which was her property, that was insured, by claiming that the articles saved were in fact burned, that act on her part alone, or anything she may have done with regard to the furniture, would not affect the right of the children to receive the amount due to them on account of the loss by fire to the building. This was erroneous; and the error consists in holding that the contract was divisible, and the rights of the parties insured became divided by the fire, although it may have been caused by the act of Mrs. Monaghan. Besides, it was inconsistent with a previous portion of his instructions, wherein he charged the jury that the contract of insurance was subject to certain conditions, and that it was necessary for the parties to observe and keep all those conditions while the risk was running, and that it was incumbent on Mrs. Monaghan to have .seen upon her part that they were kept and performed, and therefo're it was very material in this case whether she, after obtaining the insurance, set fire to the building or procured it to be burned with intent to defraud the insurance company, and that, if she did, the plaintiffs could not recover. Why was she bound to see that all the conditions of the contract were kept before the loss, and not afterwards ? Why, if she attempted a fraud upon the company by setting or causing the building insured to be set on fire, could the plaintiffs not recover, and yet could recover if she attempted to defraud the company by violating the stipulations of the contract which provides that “ any neglect to comply with these provisions, or any misrepresentation or concealment or fraud or false swearing in any statement or affidavit in relation to loss or damage, shall forfeit all claim upon the company, by virtue of this policy, and shall be a full bar to all remedies upon the same?” We can see no reason for the distinction. The attempt to defraud the company by any one of the insured, by the making of false affidavits in relation to loss, is a complete bar to a recovery upon the policy. Johnson v. Continental Ins. Co. 39 Mich. 35; Moore v. Virginia F. & M. Ins. Co. 28 Grat. 508.
The court, when instructing the jury with reference to the testimony introduced by the defendant in support of the defense that Mrs. Monaghan caused the building to be burned, said:
“ In determining whether she caused it to be set on fire or not, I desire to remark to the jury that the charge, of course, is a very serious one. It charges her with a crime. It is a crime, under our statute, even if the buildings were her own ; and the presumption of the law is that all persons are innocent of crime, until it is established by competent proof. That presumption of innocence attends Mrs. Monaghan in this case the same as it would in a criminal case — -the same as if she were on trial for an offense. In a civil suit,, however, where it is a question of dollars and cents, it is not necessary that the defendant who makes this charge should prove the case beyond a reasonable doubt. That is not necessary. That is necessary in a criminal case, but in a civil suit it is not necessary. The burden of the pi’oof, however, is upon the defendant who makes the charge, and it is necessary that there should be a preponderance of proof to establish the truth of the charge satisfactorily, to our minds. The charge is a serious one. You ought to scrutinize the evidence in support of it closely — more so than if it were a mere trifling charge. Perhaps you ought to be well satisfied of the truth of it, and you ought also to bear in mind that the charge is made as a defense to a claim against the defendant, and that the burden of proof is on them.”
The defendant took exception to this portion of the charge, and has assigned error thereon. The rule of law that the presumption of innocence attended Mrs. Monaghan in this case the same as if she had been on trial for the criminal offense of arson, and that it was not necessary to establish the charge against her, in the minds of the jury, beyond a reasonable doubt, is correctly laid down in the instruction given. The defendant must establish by a preponderance of proof that the facts exist which would constitute the crime of arson; and there is no preponderance unless the testimony adduced is sufficient to overcome the presumption of innocence as well as to establish the guilt of Mrs. Monaghan. But whenever sufficient evidence is produced to satisfy the jury that she burned or caused the house to be burned, with the intent to defraud the defendant, such evidence is sufficient to overcome the presumption of innocence, and no further proof is required. We think the jury may have been led to believe that something more was required in order to convince them of the existence of the facts sought to be proved by defendant, than a mere preponderance of proof. What would be the natural inference drawn by a jury when told that it is only necessary that there should be a preponderance of proof to establish the truth of the charge satisfactorily to their mind ? And then it is added that the charge is á serious one, and perhaps they ought to be well satisfied of the truth of it. Would they not naturally infer that their minds should be free from doubt ? Is there no difference in being satisfied and being well satisfied of the truth of an assertion ? It was to such distinctions as this that this Court alluded when it stated, in Elliott v. Van Buren 33 Mich. 52, that “ there is no rule of law which adopts any sliding scale of belief in civil controversies.”
The judgment of the circuit court is reversed and a new trial ordered.
The other Justices concurred. | [
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Cooley, C. J.
Information for larceny. The respondent pleaded not guilty, and the case was brought to trial July 11, 1883. The record states that the jury, “ duly elected, tried and sworn, sit together, hear the evidence in the case, the argument of counsel, and the charge of the court, .retire under charge of an officer duly sworn to attend to them, to consult upon their verdict, having been absent for a time, return into court, and having been inquired of as to their verdict, say upon their oath aforesaid, in the presence of the defendant, that they are unable to agree upon a verdict. Thereupon they are discharged by the court from further consideration of this case.”
The respondent was again brought to trial August 15, 1883, and the record of the trial is the same as that of the first, except the conclusion, which is as follows: “ They find that they are unable to agree upon a verdict. Thereupon they are discharged by the court from further consideration of this case.”
The case was called for a third trial September 5, 1883, when respondent filed two pleas puis darrein continuance, in which he set out the proceedings on the two previous trials and the discharge of the two juries, and prayed judgment if the People ought further to prosecute the information. The prosecuting attorney demurred to these pleas, and the court sustained the demurrer. The case then went to trial on the plea of not guilty, and the respondent was convicted. He alleged exceptions for the purpose of bringing before this Court a question which has since been disposed of in another case, and the case is brought up for review before judgment. The only question now presented for decision is whether either the first or the second trial is a bar to further prosecution.
I. The two special pleas have no office to perform in the case, and should have been stricken from the files. This is too plain to require either argument or illustration. The purpose of a plea is to tender an issue upon some fact not already in the case, that proof may be taken in respect to it if the issue is accepted. If the fact is already in the case, the plea is idle; and it becomes an absurdity when the fact is not only established by the record of the court in the very case in which the plea is tendered, but so conclusively established -that no averment to the contrary could be listened to or received. And such was the case here. The proceedings on the former trials were recited in the record, as much at large as they were or could be in the pleas, and the respondent was entitled to all the benefits which the law could give him, the facts so appearing. The prosecutor should therefore have moved to strike the pleas from the files instead of taking an idle issue upon them.
II. But the question remains whether either of the former trials was a bar; and upon this counsel have presented their views. It is contended on the part of the respondent that when a jury is called and sworn for the trial of a criminal accusation, the respondent is in legal jeopardy, and that he is entitled to a verdict from that jury, and any discharge of it without verdict except for some reason of controlling necessity is equivalent to an acquittal, and may be relied upon as such. And such a reason, it is said, does not appear in this case. On the other hand, the prosecution contends that in this State only an acquittal upon the merits is a bar to a further prosecution.
This last contention is founded upon section 29 of article six of the State Constitution, the fii’st clause tif which provides that “No person, after acquittal upon the merits, shall be tried for the samé offense.” This, it is argued, is a restriction upon the common-law right, and limits the privilege to rely upon an acquittal as a bar to the cases in which the acquittal was upon the merits. It is a littlejremarkable that this point, if tenable or even plausible, should be now raised for the first time. The present Constitution has now been in force a third of a century, and during that time the ■occasions for raising the same question have been numerous, but have never been embraced. This Court in its decisions has in several cases given to accused parties the benefit of ■common-law rules respecting legal jeopardy in cases where, ■on a former trial, the case was disposed of without passing upon the merits; and it has been supposed that the rules of law made it imperative to take this course. People v. Jones 48 Mich. 554; People v. Dolan 51 Mich. 610, decided at the last October term. We can scarcely suppose that this provision of the Constitution has been altogether overlooked by both bench and bar.
But it is urged that the clause is meaningless unless the ■effect is given to it for which the prosecution contends. In this we, do not agree. It may have meaning and effect, though different to that the prosecution contends for. And in seeking for its real meaning we must take into consideration the times and circumstances under which the State Constitution was formed — the general spirit of the times and the prevailing sentiments among the people. .Every constitution has a history of its own which is likely to be more or less peculiar ; and unless interpreted in the light of this history, is liable to be made to express purposes which were never within the minds of the people in agreeing to it. This the court must keep in mind when called upon-to interpret it; for their duty is to enforce the law which the people have made, and not some other law which the words of the constitution may possibly be made to express.
The present Constitution of this State was adopted in 1850, when all the tendencies of the day were in the direc tion of enlarging individual rights, giving new privileges, and imposing new restrictions upon the powers of government in all its departments. This is a fact of coinmon notoriety in this State ; and the tendencies referred to found expression in many of the provisions of the Constitution. Many common-law rights were enlarged, and given the benefit of constitutional inviolability; and if any wpre taken away, or restricted in giving new privileges, it was only incidentally done in making the general system more liberal, and, as the people believed, more just. Such a thing as narrowing the privileges of accused parties, as they existed at the common law, was not thought of; but, on the contrary, pains were taken to see that they were all enumerated and made secure. Some were added; and among other provisions adopted for that purpose was the one now under consideration.
It was always possible that at the common law a man might be acquitted upon the merits, and yet be subject to trial again. This could never happen if the first accusation was in a court of competent jurisdiction, and was so far made in legal form that a valid judgment might be rendered upon it; but if, for any reason, the charge was not sufficient to support a judgment, a trial upon it could be no bar to a subsequent trial upon an accusation preferred in due form of law. Vaux's Case 4 Co. 44; Rex v. Burridge 3 P. Wins. 439; Peoples. Barrett 1 Johns. 66; State v. Ray Rice 1; State v. Williams 5 Md. 82; Pritchett v. State 2 Sneed 285; Black, v. State 36 Ga. 447; Finley v. State 61 Ala. 201. This might in some cases operate as a great hardship, especially upon poor persons ; and it was this hardship that the constitutional provision was intended to preclude. It was meant to give a privilege not existing at the common law; it had no purpose to take away any which before existed. How extensive the privilege is which it gives, or in what cases it may be claimed, it would not be proper for us to express an opinion upon at the present time; but as regards the general purpose we have no doubt. The provision has no application to a case like the present.
This case is therefore to be determined on common-law rules; and the respondent relies upon People v. Jones 48 Mich. 554, as ruling it. That case is not very fully reported. The record showed that the respondent was put on trial before a jury duly impaneled and sworn ; that the prosecution went into the proofs and rested; that thereupon the jury was discharged, and a new information filed against the respondent for the same offense, upon which he was tried and convicted. The proceedings on the first information were pleaded as a bar to the second, and this Court sustained the bar. No reason appeared for discharging the jury, and the discharge stood upon the record as an act of the court, not shown to have been assented to or compelled by any necessity.
On each of the trials appearing in the record before us, the jury reported to the court an inability to agree, and were immediately discharged by its order. It is conceded on behalf of respondent that when it is found impossible for the jury to agree, the judge may lawfully discharge them for that reason, and the discharge is not an acquittal; but it is contended that the record must show that the judge found that a necessity for the discharge existed; and upon the validity of this contention the case must turn.
There is no doubt the report of the jury that they cannot agree is the proper evidence upon which the judge should act in determining upon the impossibility of their reaching a verdict. But he may not be satisfied with their first report, and has a right to keep them together for further consultation as long as in his opinion there is reasonable ground for believing they may finally agree. The whole subject, however, is referred to his judgment; and when he decides, no one can question his conclusion. And if in this case he had directed an entry upon the journal of the court that, being satisfied the jury could not agree, he directed their discharge, no question could be made of the right to proceed to a new trial.
But while it would be very proper to make such an entry, it has never been the practice in this State to do so. The fact that the judge, on receiving the report of the jury of their inability to agree, directs their discharge, is understood to be an assent on his part to their own conclusion, and a determination by him that the necessity for their discharge without a verdict has arisen. And we think this a proper view to take of his action. Any other would be technical, and tend in many cases to defeat justice.
The conviction must be affirmed.
The other Justices concurred. | [
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Campbell, J.
Complainant, who is a stockholder and director and secretary and treasurer of a corporation known as the Hart & Coke Cedar Company, filed his bill under the statute relating to proceedings in chancery against corporations, as.amended in 1879 (How. Sta-t. §§8150-8152), for ■causes included in section 8150. The bill set up several connected grievances committed by defendant Cyrus S. Hart, president of the company, in fraud of his duties to the corporation, which were, in brief, these :
In March, 1883, by fraudulently misrepresenting the condition of the company, he induced his associates in the board, who were complainant and William E. Smith (the latter holding only one share of stock which he had in order to make up the necessary number under the statute, for directors, — the remainder being owned by complainant and Hart), to make a mortgage of all the personal property to Edwin Hart, as trustee, to secure the payment of all the debts •of the corporation in installments, from June, 1883, to February, 18S4. Under this mortgage a sale is alleged to have been made irregularly and collusively to Beyer, a resident of Wisconsin, where the Harts also reside. Cyrus S. Hart is also charged with appropriating company money in various ways to his own use, with buying land with such funds in the name of his wife, tjie defendant Kate E. Hart, with issuing and then purchasing or discounting company paper at a profit, with overcharging purchases for the company, with shipping shingles and posts out of the State and crediting the company with only about 12 per cent, of their value, and sometimes giving no credit at all, and with removing the books from the State. It is not necessary to give the charges of the bill in detail, but they include a series •of very gross acts of misconduct and fraud in violation of the plainest duties of his office.
Beyer put in a general demurrer, and this was overruled below, and a decree pro confesso ordered in default of answer. He claims in this Court that the bill makes out no case of interference on behalf of this complainant, and that it is bad for want of parties.
This last point is well taken. So far as this defendant is concerned, the relief sought is for the benefit of the corpora tion, and if he releases or accounts, it must be to the corporation and not to complainant, and in case he has any counter-equities those would also exist against the corporation. It is therefore an indispensable party, so far as he is concerned, and so far as all the defendants are concerned who are charged with defrauding it. Cicotte v. Anciaux, ante p. 227.
But if the bill is otherwise sufficient to invoke the aid of ■equity, this defect can be rectified. It is therefore necessary to look into its general frame.
The statute of 1879, before referred to, allows a bill to be hied at the instance of a stockholder or director or officer against trustees, managers or other officers of corporations •created for business purposes, in several different cases, of which it is enough for this case to say that this bill covers no less than six. (if not seven) of the eight classes of causes indicted in section 8150 as grounds of interference. Cyrus TIart is implicated in all of them, and the other defendants in parts of them.
There is, in our opinion, an abundant showing of facts to sustain the jurisdiction under the statute; and while we must reverse the decree as it stands, we think justice requires that it shall be done without imperiling complainant’s rights. The order of this Court, therefore, will be that the decree be reversed with, costs, and the demurrer sustained, with leave to amend the bill within such time as may be allowed by the '■circuit court, and without prejudice to the injunction, which is retained till further ordered at the circuit.
The ease will be remanded with these directions.
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Champlin, J.
Defendants Edward A. Elliott and Louise H. Elliott, his wife, for some years owned and occupied a homestead consisting of a single city lot in Detroit, exceeding in value $1500, and not capable of division so as to set off a homestead of the value of $1500 or under. Hpon this homestead said Elliott and wife executed a mortgage to the complainant. Subsequently a number of liens and mortgages were placed upon the premises, among which were the following, in their order: (1) levy, December 26, 1877, Jason Stebbins; (2) levy, September 10, 1878, J. H. Ear- well; (3) levy, September 13, 1878, Preston & Harper; (4) levy, September 25,1878, A. Ives and others; (5). mortgage duly executed by Edward A. Elliott and wife to Louis K. Elliott, so as to bind their homestead interest in said property, under the laws of this State, to secure $5237.35 due t-o mortgagee and the other appellants, November 30, 1878; recorded December 2, 1878. These levies and the mortgage are all unpaid, except so far as a stipulated payment of $4000, out of the surplus in this case on Nos. 2, 3, and 4, may have-paid some of them, and are undischarged. Nos. 1 and 5 belong to Louis P. Elliott. Nos. 2, 3, and 4 belong to Jesse H. Earwell.
The mortgage to complainant was foreclosed in this case below; the property sold for about $21,000, realizing a surplus of about $6000. Edward A. Elliott and family were occupying this mortgaged property as a homestead at the time it was sold under the decree of foreclosure. Proceedings to distribute this surplus were had, and the circuit court commissioner reported that $1500, being the amount of the homestead interest of said E. A. Elliott and wife in the mortgaged premises, should be first paid to Louis P. Elliott on the second mortgage, (No. 5,) and the balance applied to the payment of the levies in their order. To this report defendant Farwell excepted. Pending the hearing of these exceptions, Edward A. Elliott and Lonise H. Elliott died, and their personal representatives duly became parties to the suit. The circuit court sustained the exceptions, and decreed that the surplus should be applied in payment of the levies in their order. Levies 1, 2, 3 and 4 will more than exhaust the surplus. Prom so much of this decree as denies a first payment of $1500 on the second mortgage, (No. 5,) the present appeal is taken. The notices of all the levies aforesaid, in the office of the register of deeds for "Wayne county, are signed with the name of the sheriff of said county, by one of his deputies, and recite that the levies were made by the sheriff. Edward A. Elliott and his family were occupying the mortgaged property as a homestead at the time these levies were made.
The sole question in this ease is whether $1500 surplus moneys resulting from a sale of a mortgagor’s homestead upon a foreclosure in chancery shall be ajíplied to the payment of subsequent levies under executions issued upon judgments against the mortgagor alone, in preference to a mortgage made by the debtor and his wife after the levies, and while the mortgaged premises were occupied by such debtor as a homestead. The Constitution exempts from forced sale on execution or other final process from a court, for any debt contracted after its adoption, a lot in any city, village or recorded town plat, or such parts of lots as shall be equal thereto, and the dwelling-house thereon, and its appurtenances, owned and occupied by any resident of the State, not exceeding in value $1500. And the statute provides that whenever the homestead of any debtor, in any case where a circuit court commissioner shall advertise the same for sale under a decree of foreclosure of a mortgage not valid as against the homestead, shall exceed $1500 in value, he shall not lose the benefit intended to be secured to him by the Homestead Act; and if the premises cannot be divided, and are sold, and bring more than $1500, the proceeds to the amount of $1500 shall be paid to the debtor, and shall be exempt from execution for one year thereafter. How. Stat. ch. 267.
In Smith v. Rumsey 33 Mich. 183, it was held that the homestead was not subject to execution, but it was grants-' ble, and the husband might convey it to his wife without consideration, and such disposition was no concern of the creditors, and that “the law excludes the homestead from all remedies of creditors in all courts, and the power of the creditor to take it against the will of the owner is absolutely subverted.” And this case was aj>proved in Anderson v. Odell 51 Mich. 492; and in Lozo v. Sutherland 38 Mich. 168, where the homestead was owned by husband and wife as tenants in common, and an execution was levied upon the husband’s interest to satisfy a judgment against him, and was sold, and a deed obtained thereunder, and the husband and wife filed a bill to set aside the sale, on the ground that the premises, being less than a city lot, was a homestead. The premises exceeded fifteen hundred dollars in value, but there were certain mortgages upon them, and the bill alleged that the value thereof, exclusive of the mortgages which were given prior to the levy, did not exceed fifteen hundred dollars ; it was held that the complainants were entitled to the relief asked. The principle upon which these cases proceed is that the homestead, within the ’constitutional and statutory limitations, and in cases where the premises occupied by the householder and family exceed those limitations as to value, and are indivisible, the homestead interest, to the amount of fifteen hundred dollars, is absolutely exempt from execution, and is subject to the control and disposition of the debtor and his wife, to the entire exclusion of creditors.
In the case under consideration, the homestead not being capable of division and exceeding in value fifteen hundred dollars, and subject to a mortgage to complainants, was exempt from execution to the extent of fifteen hundred dollars over the mortgage debt, and if the question was one between the mortgagors and the execution creditors, under the ruling in Lozo v. Sutherland the mortgagors would be entitled to the fifteen hundred dollars as exempt from levy on execution; and under the ruling in Smith v. Rumsey they could make such disposition of this exemption as they chose. They did give a mortgage upon the property which covered this exempted interest, to Louis E. Elliott, and his rights are paramount to those of the execution creditors, for the reason that those creditors could not subject this homestead interest, secured to the debtor by the statute, to their executions.
It follows that the order of the court below must be reversed, and a new one entered in accordance with these views.
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Campbell, J.
Complainants brought a complaint against defendants before a circuit court commissioner under the Landlord and Tenant Act. The case was tried by jury, who found for defendants, and the latter recovered judgment and had their costs allowed by the commissioner, who in the taxation gave them a larger sum for witness fees than complainants thought lawful. A certiorari was sued out to the circuit court of Monroe county on several grounds, among which was the excessive allowance of costs. That court reversed the whole judgment of the commissioner, and error is brought to review this reversal.
It is now admitted that so far as the principal part of the judgment is concerned it was improperly reversed, and this is obvious. But it is still claimed that the reversal- of the judgment for a part of the costs should have been granted.
The objections all go to excessive allowances of witness fees, where the commissioner had items which he could lawfully consider, but which were in some respects allowed at too high a rate, and in one instance may have been improper entirely. .
By section 5479 of the Compiled Laws [How. Stat. §7046] it is provided that no justice’s judgment shall be reversed merely on account of improper allowances of fees. Appellate proceedings from commissioners are placed on the same footing with those from justices. §§ 6718, 6721. [How. Stat. §§ 8307, 8310.] Such being the general policy, there must be peculiar circumstances to authorize exceptions. The case of Wilcox v. Laflin & Rand Power Co. 44 Mich. 35( was one where, by another statute, justices were precluded from allowing costs at all, and therefore a question of- jurisdiction arose; while here there was jurisdiction, but some errors in exercising it in taxing the various items. The objections do not go to the whole, or to any considerable portion, of the costs. Without, therefore, deciding how far cases can arise in which judgments for costs can be reviewed, we do not think it would be proper to allow a writ of certiorari where the controversy is so limited in extent as it is here, and where the amount is so small. In our opinion the circuit court should have dismissed the writ as improvidently granted. We shall accordingly reverse the judgment and order the writ to be quashed, with costs of this and of the circuit court. We have no doubt the small excess in the commissioner’s taxation will be remitted by counsel for respondents, as they suggested' on the argument they would have remitted it had a proper opportunity been given them at an earlier stage of the suit.
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Champlin, J.
Thunder Bay is a portion of the waters of Lake Huron. The bay is of considerable magnitude, being about 13 miles wide at its mouth, and extending from South Point in a north-westerly direction a distance of fifteen or twenty miles. The shores of this bay are quité irregular, and indented with smaller bays, one of considerable size being known as Squaw Bay. Sulphur Island is situated in Thunder Bay, between one and two miles from the mainland, in the western part of the bay. It contains about fifty-three acres of land, and was surveyed and sold by the United States government as lots 1 and 2 of section 13 in township 30 North, range 8 East. This land is valuable only in connection with the fisheries in Thunder Bay. There is a channel between it and the mainland of abont thirteen feet of depth of water, but the main channel used in navigation to and from the city of Alpena, which is situated upon- the bay, lies north-east of the island.
The defendant at the time of the grievances complained of was the lessee, and in possession of Sulphur Island. He had been for some time engaged in the business of fishing in Thunder Bay, in front of lands owned or leased by him, and claimed that, by virtue of his lessor being the owner of Sulphur Island, he was the proprietor of the soil under the water in front thereof, and controlled the right of fishing in those waters by means of trap-nets, which cannot be used without the aid of stakes, or poles driven in the ground. The plaintiff is also a fisherman, and sometime in June, 1882, caused stakes to be driven in Thunder Bay, commencing about a mile east of Sulphur Island, and thence continued eastward for. a distance of about one hundred and sixty rods, for the purpose of affixing thereto trap-nets for fishing. The depth of water where the stake nearest the island was driven was twenty-six or twenty-seven feet, and where those were driven the furthest from the island the depth of water was thirty-six or thirty-seven feet. The defendant also proceeded to drive stakes near those driven by the plaintiff, arid notified the plaintiff to take up and remove those placed there by him, but he refused, and the defendant pulled them up, and they floated away and were lost. The plaintiff brought trespass, and recovered under the charge of the court, which is given in full in the margin.
There are two questions presented by this record:
1. Is the owner of land bounded by the waters of the Great Lakes, like Lake Huron, entitled to the rights’of a riparian proprietor in front of his lands, to the center of the lake ?
2. If so, do such rights confer upon such riparian proprietor the exclusive right of fishing in the waters in front of his land, by means of stakes or other attachments to the soil under water?
The plaintiff bases his right of recovery upon the public right of fishing in the Great Lakes. By the common law, all persops have a common and general right of fishing in the sea, and in all other navigable or tide waters; and no •one can maintain an exclusive privilege to any part of such waters unless he has acquired it by grant or prescription.
In the case of Carter v. Murcot 4 Barr. 2162, it was declared that in rivers not navigable — that is, in rivers not affected by the tides — land-owners had tlie right of fishing on each side, commonly, to the middle of the stream, and in navigable tide-water rivers the right was prima facie in the king, and was public; but a private person may have an exclusive right by grant or prescription.
The decisions in England have been uniformly to the effect that the owner of land bordering on streams not affected by the flow and reflow of the tides, whether in fact navigable or not, has the exclusive right of fishing in front of his land to the middle of the stream. The later cases are fully as strong as the earlier. In the case of Malcomson v. O'Dea 10 H. L. Cas. 618, the court said: “ The soil of navigable tidal rivers, like the Shannon, so far as tlie tide flows and reflows, is prima facie in the crown, and the right of fishery, prima facie in the public. But'for Magna Charta, the crown could, by its prerogative, exclude the public from such prima facie right, and grant the exclusive right of fishery to a private individual, either together with or distinct from the soil. And the great charter left untouched all fisheries which were made several, to the exclusion of the public, by act of the crown not later than Henry II.” In Murphy v. Ryan 2 Ir. E. C. L. 143, it was held that the public could not acquire, by immemorial usage, any right of fishing in a river in which, though navigable, the tide did not ebb and flow; and to the same effect is Hargreaves v. Diddams L. R. 10 Q. B. 582. In Johnston v. Bloomfield 8 Ir. R. C. L. 68, (Exch. Cham.,) it was held that the public has not, of common right, a common of fishery in large inland waters, in which the tide does not flow and reflow, although they are navigable. A case decided in the House of Lords in 1878, and cited as Bristow v. Cormican L. R. 3 App. Cas. 641, was where the plaintiff brought trespass against the defendant to establish a right to a several fishery in Lough Neagh. Defendant alleged that the several fishery and the lands covered with water were, and from time immemorial had been, part of an inland sea, called Lough Neagh, and that said inland sea had been a common or public navigable inland sea, and that, in the part thereof mentioned, every subject of the realm had, and of right ought to' have, the right and privilege of fishing, and that, in the exercise of that right he committed the trespass complained of. The plaintiff claimed-the right to fish through a royal grant from Charles II., in 1660, and another in 1661 of the right to fish in Lough Neagh. No evidence had been given of forfeiture, or -escheat, or other source of title in the king. Lord Cairns said: “ The crown has no de jure right to soil or fisheries of a lough like Lough Neagh.” He then proceeds to describe Lough Neagh as “ the longest inland lake in the United Kingdom, and one of the largest in Europe. It is from fourteen to sixteen miles long, and from six to eight miles broad. It contains nearly 100,000 acres; but though it is so large, I am not aware of any rule which would, prima facie, connect the soil or fishings with the crown, or disconnect them from the private ownership either of riparian proprietors or other persons.” And Lord Blackburn said : “ The property in the ■soil of the sea and of estuaries and of rivers in which the tide ebbs and flows is prima facie of common right vested in the crown. It is clearly and uniformly laid down in our books, that where the soil is covered by the water fdhning a river in which the tide does not flow, the soil does of common right belong to the owners of the adjoining land; and there is no case or book of authority to shew that the crown is of common right entitled to land covered by water, where the water is not rnnning water forming a river, but still water forming a lake. * * * I own myself to be unable to see any reason why the law should not be the same, at least where the lake is so small, or the adjoining manor so large, that the whole lake is included in one property. Whether the rule that each adjoining proprietor, where there are several, is entitled usque ad filum aquas should apply to a lake is a different question. It does not seem very convenient that each proprietor of a few acres fronting on Lough Neagh should have a piece of the soil of the lough many miles in length tacked on to his frontage. But no question arises in this case as to the rights of the riparian proprietors amongst themselves, for no title is made by either party through any one as riparian owner. It is, however, necessary to decide whether the crown has of common right a prima facie title to the soil of a lake; I think it has not.”
It is evident, from the foregoing citations that the question in England, as to riparian proprietorship in the soil under lakes, had not been judicially settled as late as the year 1878. The holding that the crown does not of common right prima facie own the title to the soil under the waters of an inland lake, leads necessarily to the other conclusion, that such soil belongs to the riparian proprietor. But the case can form no guide with reference to riparian ownership upon the great inland seas bordering this State. Lough Neagh, the largest in the United Kingdom, is too small to be the subject of any comparison with Lake Huron, with the object of ascertaining by any analogy whether the rules or principles of riparian ownership applied to one should govern the other.
It was the theory of monarchical governments that the king was lord of the sea, and the owner of the soil while it was covered with water. 2 Bl. Com. 262. This is a reasonable doctrine, and founded in good sense. It would be absurfl to suppose that any private person could appropriate to Ills own exclusive use either the waters of the sea or the soil beneath it. The public right of navigation and fishing in such waters should not be rendered subservient to private occupancy. Title by occupancy presumes a grant. There must be an owner capable of granting before a grant can be made. If there be no owner there can be no grant, and no title by prescription. And so the common law regarded the sovereign as owner, and as holding the title in trust for the ■public use of navigation and fishing, and such uses as should subserve the general welfare. The same reasons which existed during the origin and growth of the common law to deny the right of riparian proprietorship in the bed of the sea forbid such private proprietorship in the owner of land bordering on the Great Lakes. “All titles in this State are supposed to have been granted or originally recognized and confirmed by the United States or by this State.” Gamble v. Horr 40 Mich. 564. That is from the sovereign power. Before the admission of this State, the United States, as sovereign, had political jurisdiction of the whole area, including the navigable waters of the Great Lakes, and when the State was admitted into the Union this political jurisdiction devolved upon the State, and the title to the soil under the navigable waters of the Great Lakes became vested in the State, as sovereign to the same extent and for the same reasons that the title of the bed of the sea was vested in the king.
If the defendant has any title to the land under the waters of that portion of Lake Huron known as Thunder Bay, he must have derived it either by a grant from the United States or from the State of Michigan. He claims it by grant from the United States, and in virtue of his riparian proprietorship in Sulphur Island, and that as a concomitant of this interest in the soil he has the exclusive right of fishery in the waters of the bay in front of the island, at least so far as-the driving of stakes in the soil and the use of trap-nets is concerned. What, then, are the boundaries of the grant made by the United States government of the land on Sulphur Island? I have no hesitation in saying that they are limited by low-water mark. I think the true prificiple is laid down in the following cases: Canal Com’rs v. People 5 Wend. 423; Champlain c&c. R. R. Co. v. Valentine 19 Barb. 484; Fletcher v. Phelps 28 Vt. 257; Jakeway v. Barrett 38 Vt. 316; Austin v. Rutland R. R. Co. 45 Vt. 215; Seaman v. Smith 24 Ill. 521.
In State v. Gilmanton 9 N. H. 461, Chief Justice Parker said: “ Where a grant is made extending to a river, and bounding upon it, the centre of the stream is the line of the boundary, if there is no limitation in the terms of the grant itself. But in relation to 'grants bounding on ponds, lakes, or other large bodies of standing fresh water, that principle does not apply, but the grant extends only to the water’s edge.” See also 3 Kent’s Com. 429, and note b.; Gould on Waters § 203 and cases cited in note 3; Angelí on Water-courses §§ 41, 42. Such also is the construction placed upon grants of the United States by the United States Supreme Court. Barney v. Keokuk 94 U. S. 324; Railroad Co. v. Schurmeir 7 Wall. 272.
In England, where the common law had its origin, there were no great inland seas, such as our Great J^akes, and consequently no precedent can be found in the jurisprudence of that country which determines the applicability of the common-law doctrine of riparian rights to the question under consideration. Lake Huron is estimated to contain 20,000 square miles, while the Irish Sea is computed at less than 15,000. Lake Michigan contains more than twice, and Lake Superior about four times the number of square miles contained in the Irish Sea.
If we look for analogies, they will be found to consist in the resemblance of the Great Lakes to the seas which surrounded that country, and would seem to call for the application of the same principles as to boundaries which were applied to lands bordering on those seas, with this difference : as there is no periodical ebb and flow of tide in these waters the limit should be at low instead of at high water mark. The paramount rights of the public to be preserved are those of navigation and fishing, and this is best accom plish'ed by limiting the grants of lands bordering on the Great Lakes to low-water mark. It does not follow, however, ■that the owner of lands'thus bounded has no rights to the use of the water or the soil beneath it. It is well settled in this country, that where the law is that the owner is limited by either high or low water mark, he has the right to con. struct warehouses, wharves or piers in the water in front of his land, in aid of and not obstructing navigation. Railroad Co. v. Schurmeir 7 Wall. 272; Yates v. Milwaukee 10 Wall. 497; Providence Steam-engine Co. v. Providence etc. Steamship Co. 12 R. I. 348; Coburn v. Ames 52 Cal. 385; Mather v. Chapman 40 Conn. 382; Drury v. Midland R. R. Co. 127 Mass. 571; Boston v. Richardson 105 Mass. 351; Lakeman v. Burnham 7 Gray 437; State v. Sargent 45 Conn. 358; Moulton v. Llbbey 37 Me. 472; Clement v. Burns 43 N. H. 609. In some states this right is said not to exist witli out legislative authority. Tinicum Fishing Co. v. Carter 61 Penn. St. 21; Garitee v. Baltimore 53 Md. 432; Alden v. Pinney 12 Fla. 348; Norfolk City v. Cooke 27 Grat. 430; Rice v. Ruddiman 10 Mich. 125.
The defendant claims that the decisions of this Court have settled the question of riparian ownership to lands bordering upon the navigable waters of this State, and that by such decisions his rights as such owner covers the locus in quo in this case; and he cites us to the following cases: Rice v. Ruddiman 10 Mich. 125; Bay City Gas-Light Co. v. Industrial Works 28 Mich. 183; Pere Marquette Boom Co. v. Adams 44 Mich. 404; Watson v. Peters 26 Mich. 517; Loorman v. Benson 8 Mich. 18.
None of the foregoing cases involved the rights of riparian owners of land bounded by the waters of the Great Lakes. In the case of Rice v. Ruddiman, Lake Muskegon was treated by three of the judges as a widening of the Muskegon river, but the majority of the Court based their decision upon the well-recognized principle that the owner of the shore had the right to make use of the shallow waters in front of his premises, by the construction of wharves, buildings and other improvements, so long as the public servi tude was not thereby impaired, and it was immaterial whether the particular place in controversy was a part of Lake Michigan or not. The case of Pere Marquette Boom Co. v. Adams was clearly the case of a river, although called Pere Marquette lake. This lake is formed by a widening of the waters of the river before they reach Lake Michigan, and no reason -is apparent why the principles applicable to rivers should not govern the rights of riparian proprietors upon this so-called lake.
The defendant calls attention to the case of Richardson v. Prentiss 48 Mich. 88, as deciding the very point in issue, and claims that it was there held that the owner of lands upon the shore of Thunder Bay does own the soil under the water in front of his upland, and has the exclusive enjoyment of the usual riparian right appurtenant thereto, and he insists that the only question to be considered is the extent of those rights, and that, subject to the right of navigation, there is no limit of distance from the shore, save only the central thread of the stream or center line of the lake, and that there is no limit at all to the depth of water in which he may exercise his right. If the position is correct that the owner of land bounding on Thunder Bay has the same riparian rights that the owner of land bounded by a river or other stream has, then there can be no question as to his exclusive right to fish in the waters where plaintiff had attempted to, in this case, and that plaintiff was a trespasser, and defendant was justified in removing the stakes driven by plaintiff, for the law is well settled that riparian proprietors upon fresh-water streams have the exclusive right of fishing in the waters opposite their lands. Gould on Waters § 182, and cases cited in note 1; Angelí on Water-courses § 61; Hart v. Hill 1 Whart. 124; Beckman v. Kreamer 43 Ill. 447.
The case of Richardson v. Prentiss does not conflict with the views I have expressed. Although the ease discusses the rights of riparian owners, and refers to them generally in the language of the authorities as extending ad medium filutn aquse, yet the case presented was whether a person, after selling to complainant land bounded by the waters of the lake, could go in front of complainant and appropriate the land under the water. The grantor had no more right to exercise exclusive dominion over the soil under the water in front of the lands of her grantee than an entire stranger; and it is clear upon all the authorities that complainant liad certain riparian rights flowing from her, being the owner of the shore, which neither her grantor nor any other person could deprive her of without her consent. The question to be decided was whether the complainant’s grantor, after selling the shore to complainant, had riparian rights in front of the lands sold which she could appropriate to her own private and exclusive use, and it was held that she had not, and that the complainant had a right to be protected against the unauthorized appropriation of such land which would deprive her of her access to the water.
I have already cited numerous authorities to show that riparian rights exist on the banks of waters, whether navigable or not navigable, whether subject to ebb and flow of tide or not. The subject is fully discussed and authorities collated in Gould on Waters §§ 124, 140, 149.
There is nothing in the previous decisions of this State which determines the defendant’s exclusive right of fishing at the point stated in the declaration. I think that the waters of Thunder Bay are public waters, and the right of fishing therein is a common right of all the citizens of this State, subject only to the paramount right of navigation, and is the subject of legislative control. Angell on Tide Waters §§ 124, 21, 22; McCready v. Virginia 94 U. S. 391; State v. Company 49 N. H. 250; Sloan v. Biemiller 34 Ohio St. 492; 3 Kent’s Com. 418. These fisheries are beginning to assume great commercial importance. The census report for the year 1880 shows that the capital invested in the fisheries of this State was nearly half a million of dollars, employing seventeen hundred and eighty-one men, and the value of the product was nearly three quarters of a million dollars.
The State has already taken the subject under its control. There is a permanent board of fish commissioners, and laws liave from time to time been passed regulating the time and manner of catching fish. How. Stat. ch. 63. Section 2172 of this chapter provides:
“ It shall be unlawful for any person or persons to put into any of the waters fronting or bordering land where fish are taken by the legal owner or occupant of such lands, any vessel or ship ballast, stone,' sand, coal cinder, ashes, log slabs, decayed wood, bark, saw dust, or obstruction, or filth of any other description, or to place or drive any pound net piles or stakes, or any other piles or stakes, or posts, or build £py platforms or piers, or any species of seines or continuous trap nets, to the extent of the breadth of such legal owner or occupant’s lands so far as the channel banks of the rivers, and to one mile from the beach or shore, at low-water mark of the lakes, straits, inlets and bays on said waters fronting such owner or occupant’s lands, and it shall subject any boat-owner, or captain of any vessel, to a fine of not exceeding fifty dollars, who shall willfully run into or molest any pound net, trap or other stationary nets, or fixtures set in the lakes for fishing purposes.”
This statute protects the defendant in the exclusive right within one mile from the shore of Sulphur Island, but beyond that limit the right of fishing is common, and the public have equal rights there. It appears to me that the statute has protected the defendant to the full extent he can reasonably ask, and when he went beyond that limit and pulled out and destroyed plaintiff’s stakes, he was liable to an action for the damages occasioned thereby.
The judgment is affirmed.
Campbell, J.
I agree in holding that the riparian owner in this case had no right to interfere with the fishing apparatus of plaintiff. But I do not entirely agree with the views expressed by my brother Champlin as to the character of aquatic rights in the lakes. I think there'is no doubt of’the right of the owner of lands on the borders of the lakes to make such use of the covered lands adjacent as will not in juriously affect navigation ; and that there is no such proprietary division known on these waters as high or low-water mark. I agree that it depends on the law of the State how far rights may be exercised consistently with public easement of navigation in the submerged lands. But I regard it as settled by the common law of this State that such rights exist, so far as they can be reasonably enforced and identified.
But there are two difficulties in the way of defining these rights on our large lakes, as they might be and are defined in the narrower waters connecting the lakes. One is the impossibility of defining the boundaries where there is no filum aquse; and the other is the public character of the-waters which gives the State a much larger control than over strictly private waters.
In carrying out lines of ownership in narrow streams, it is easy to find the general course of the stream, and to draw lines perpendicular to that course from the terminal shore lines. But on lakes all lines from the shore tend to converge in some central part of the lake, and while irregularity of shape prevents drawing them to a common center, they must all, if protracted, cross each other in a perplexing way. The rule adopted in such waters, where the whole surface could be appropriated, has always been to divide the water area in proportion to the shore frontage, and never to attempt any division bylines run from the shore, except over such' parts of the lake as are substantially adjacent to the shore. In some cases by a fair partition, a shore-owner would, by his extent of shore-line, obtain a share beyond the center. But it seems impossible, if the whole water is to be regarded as divided up, to reach a division without some proceeding in the nature of a partition, which will fix the various possessions.
This would be practically impossible in such bodies of water as are great commercial ways, and lie within different states and nations. And in navigable waters, it becomes a purely theoretical question in most cases, except where affjacent riparian owners may jostle each other near the shore-line in their improvements or local occupation.
There can be no doubt of the right of the state to forbid any erections within such parts of the water as are strictly navigable, and to regulate the distance beyond which no private erections can be maintained. This has been done on the waters in question, and beyond the prescribed distance any use of the water and bottom for fishing, or other appliances,, must be valid or invalid on other principles than those which govern nearer the land. The stakes removed were all in deep water, which was navigable for large craft, although not much used for navigation proper, and they could not as a. matter of right have been planted by either plaintiff or defendant so as to be maintainable against the interests of navigation. So long as they did not operate as nuisances in fact, they could not be removed wantonly, and if nuisances,, they could not be removed by any private person who did not suffer special damages from them as nuisances. But there could be, I think, no proprietary right in any one, at such a distance from the shore, to claim a monopoly of '“fixing such stakes in deep water, where they would be technical encroachments in the water-way, if not justified by some use belonging to the water instead of appurtenant to the land. The temporary occupant cannot be crowded out of his occupancy while engaged in actual business.
Outside’of the statutory line I think there can be no doubt of the right of any one to fish with such appliances as are appropriate to open-water fishing. It has always been customary on these lakes to treat deep-water fishing and navigation as resting on the same basis, except in narrow waters or near shore, where fixed apparatus might have’ some relation to riparian occupancy as used in connection with it. Fishing such as was involved in this controversy has no natural connection with the dry land or its approaches. It is carried on altogether by the aid of vessel or boat navigation, and is fairly incidental to that class of business. Such fishing as is done with lines from boats, even in narrow streams cannot be complained of by riparian owners. The fish are like any other animals ferae naturae, and in this region have always been regarded as open to capture by those who have a right to be where they are captured. On the large open waters there is no reason, except public convenience, which can make it improper to fish with the aid of any machinery or apparatus suitable to the business; and if stakes or similar devices are used, and the public authority does not see fit to intervene, no one else can do so who is not hindered in the exercise of those rights of navigation which are open to everybody. Such injuries are very unlikely, as those using the Great Lakes as highways should pay a due regard to all of the various uses to which the waters are subject, and cannot wantonly interfere with any of them. I can see no reason why open-water fishing is not as essentially a maritime business as any other use of the water.
I am not prepared to hold, however, that lands under water are not appurtenant to the upland so far as they can be used at all. But, as already suggested, the impossibility of determining what part of a lake of many hundred miles shore-line, in two jurisdictions, can be made appurtenant to a mile or two of shore, renders it certain that, without some such statute as we have on the subject, even the shore approaches might in some cases be found very difficult of allotment. I therefore concur in regarding this statutory rule as entirely valid in regulating rights in deep water, and as better adapted-to reaching practical results than any theoretical rules, which can never be applied on such large bodies of water at any considerable distance from the shore.
I agree in affirming the judgment.
Cooley, O. J., and Sherwood, J. concurred.
Gentlemen of the Jury: You have already perceived from the evidence in this case the great degree of importance which attaches to the correct decision of this case, not only to the parties immediately interested in this litigation, but also, as affecting the rights of a large class of our citizens who are engaged, in this community, in the business of fishing in the waters of our bay and the lake. Indeed, the important character of this case will affect, if it becomes generally known, even those who carry on this business at greater distances than our own bay here at home. I thiuk that you cannot fail to have perceived, from the instructive and able arguments of the counsel here before the court upon the law applicable to the case, that it is a question of considerable intricacy and difficulty, and I invite, as I know you will give, your earnest attention to the law of this case as I shall lay it down to you, as well as your attention to the facts in the case.
Now, gentlemen of the jury, as in all other cases of law, in this ca=e there are two classes of questions that arise : Questions of law to be considered and determined, and questions of fact. The decision and the determination of all questions of law is exclusively for the court. And as honest jurors, whatever you may think about the rules of law that I shall give you, you will accept them implicitly as given you by the court; but upon the questions of fact you are the sole judges. Now, gentlemen, I want you to pay the most earnest attention to these matters of law, and to accept them, as I have no doubt you will from my knowledge of you as citizens and as jurors, implicitly as they are laid down to you by the court.
The plaintiff in this case, Mr. Lincoln, seeks to recover from the defendant, Mr. Davis, for the pulling up of certain stakes which he had secured in the waters of Thunder Bay, easterly of Sulphur Island; for the purpose of using them in trap-net fishery. I say, he seeks to recover damages before you for this destruction of the proposed fishery, and some other losses which he claims he is entitled to recover for before you here, and this involves at once the great and disputed right of fishing in the waters of the Great Lakes and this bay upon which we live. In the case of a river in this country, the owner of the bank owns the soil under the water to the center line or thread of the current of the stream, and that right or ownership in the soil carries with it the exclusive right of taking the fish in the waters of the river. I do not care whether the river be large or small, the same rule prevails. The same rule prevails upon the Detroit river that prevails upon the Muskegon river or the rivers of Thunder Bay. If the owner of one shore also happens to be the owner of the opposite bank, he has the exclusive right of taking the fish in the waters of the river whatever the size of the stream may be, and of absolutely prohibiting the public, if he sees fit, from taking any fish in the waters of the river whatever; and I do not care how they may get there, whether they may ascend or descend the stream, so long as they are opposite the land owned by him. He has the absolute right of controlling the fishing in the waters of the stream. But these lands do not lie upon the banks of any stream or river, and we therefore turn our attention to the determination of what the law may be in the case of land situated as this land is situated, in the waters of Thunder Bay.
The owner of land bordering upon this bay or upon Lake Huron, by reason of his ownership of the shore or upland, has the exclusive right of using the soil under the waters of the bay or lake for all. purposes for which he can make use of them as pertaining to his use and enjoyment of the shore or upland itself. He has the exclusive right of building a dock or pier out into the water for the purposes of navigation, and he has for that reason the right to charge parties that use that wharf such charges as may be reasonable or regulated by law for their use of his wharf. He has the exclusive right of driving piles in the water in front of his land for the purpose of booming logs there, and the thousand other incidents to the use of the soil under the shoal waters lying imme-. diately in front of his land that it may be put to for the purpose of still' further enjoying the shore before it. He has the right, too, of building mills in the shoal waters out. in front of his land, and exclusively using the soil to the extent for which he may make beneficial use of it. That is the general rule of law. But the right of fishery, gentlemen of the jury, is a right which is limited. I say to you,.gentlemen, that under what I call the common law of this State, the owner of the shore or upland has not the exclusive right of fishing in the waters which lie before his land. He has the exclusive right of landing upon his land for the purpose of using the waters. No man would have the right to come there and attach any net to his shore, or to drive stakes there so ás to interrupt his perfect access to and from his land, and his right to use the shoal waters in front of his land for all purposes connected with his use of the land itself. They have no right to interfere with any of these rights of the shore-owner. But the legislature of this State have assumed control of this matter in part, and I now lay it down to you here as the law of this case, and as the law of all similar cases, that at a point in .the waters.of this bay, at a distance of one mile from the shore, that persons who do not own the land itself have just as good a right to drive their stakes to put their trap-nets upon as the owner of the land itself. Now, what is the result of this doctrine ? It is this : If you shall find that Mr. Lincoln, sometime in the summer or spring of last year, as is not disputed from the evidence in this case, drove certain stakes, for the purpose of stringing his trap-nets upon, in the soil in the waters of Thunder Bay, at a distance of one mile or more from Sulphur Island, (which it is conceded Mr. Davis was then in the occupation of, and was attempting to use for the purpose of taking fish,) I say to you, if Mr. Lincoln drove these stakes there at a distance out I have mentioned, in water f-rom 24 and 25 feet to 36 and 37 feet in depth, for the purpose o£ setting his nets there, that Mr. Davis, by reason of his owning Sulphur Island, had no right whatever under the laws of this State to interfere with those stakes, and if he did so he would be guilty of a wrongful act in pulling any of them up and allowing them to float away. As to those stakes which were wiihin the iimit of one mile from the shore, Mr. Lincoln had no right to drive them there, and if Mr. Davis, after notifying him that they were in his waters, pulled them up and allowed them to float away, for those stakes which were so pulled up, unless it was done wickedly and maliciously, no damages will arise from which this plaintiff can recover in this action. But as to those stakes of the plaintiff, Mr. Lincoln, which he had driven in the waters of Thunder Bay at a distance of one mile and more from the shores of Sulphur Island, I say to you that there is nothing in the proofs of- this case as to Mr. Davis’ ownership of Sulphur Island, and his occupation and rights there, which would entitle him to remove Mr. Lincoln’s stakes, and if he did so he would be liable in this form of action for the damages which accrued. If you do not find that Mr. Davis removed these stakes that would, of course, stop this case. If you find, from the facts conceded here and the evidence, that Mr. Davis did remove these stakes, it is for you to determine — first, what portion of them were beyond the distance I have spoken of, and if you shall find that Mr. Davis did remove these stakes, then determine what the damages were, tinder the rules of the law as I shall give them to you at .this time. In the first place, he would be entitled to recover his actual damages) if he is entitled to recover at all, and that would be the value of the stakes as they stood there in the water, and that, I think, as has been very reasonably claimed to you by the plaintiff’s counsel, and conceded by the defendant’s counsel, would be the cost of the stakes and the cost of putting them there.
It is for you to determine, gentlemen, what was the actual loss which Mr. Lincoln suffered, if he suffered loss, from the removal and destruction of the stakes which he had placed in the water ; that is a question of fact for you to determine, and it is referred to you entirely upon the facts in this case. He may have suffered other damages, perhaps, and it is also for you to determine if he did, and if so what they were. These stakes were erected there in the water by Mr. Lincoln for a purpose — for the purpose of stringing two trap-nets upon. He had the twine, the nets, to put upon these stakes. After having these stakes removed by Mr. Davis, he did not lie still with his two nets, and he ought not to have done so, and attempted to recover from this defendant here the profits which he might have made from those two nets, hut he did as he had a right to do, and that was to put those nets in other water and in as favorable a location for catching fish as he could, and if lie suffered a loss, occasioned by the act of the defendant in removing those stakes from where they were and compelling him to get a less favorable place to put in his nets, he would be entitled to recover in this action, as a part of his actual loss, his loss in profits. In other words, what he suffered by being compelled to remove to a less favorable place. He would be entitled to recover the difference between what he would have made from his nets where they were put in the first place, and what he did make as his profits in the place where he was compelled to put them, if that was the best place he could obtain under the circumstances. That is another question of fact for you to determine from the evidence in this case, if you are able to, as well as'you can, what that loss was, if any occurred to the plaintiff. And those are the elements: first, all the actual loss occasioned to the plaintiff, Mr. Lincoln, if he is entitled to recover. Of course, in cases of this kind, where the plaintiff has been deprived of any of his legal rights, if you find that he has been so deprived under the law as I have given it to you, the actual loss which he has sustained is incapable of being ascertained in dollars and cents. But that is not the fault of the plaintiff. That is the result of the circumstances under which these cases happen, and it is for you to ascertain this loss, if you find lie has sustained loss, to the best of your ability under the circumstances. *
There is also a claim on the part of the plaintiff for damages, in the nature of exemplary damages, or punitory damages, against the defendant. Upon that subject I want to speak very carefully to you. Punitory or exemplary damages, as they are called, is a term which is applied in law to damages which are sometimes allowed to a plaintiff where the act of the defendant has been particularly willful and malicious, and done knowingly wrongfully, for the purpose of punishing the defendant. The law allows such damages as that to be recovered in a proper case. That is in a case which discloses facts justifying it. But you would not be justified in this case in inflicting any such damages, if you believe that Mr. Davis, in removing the stakes of Mr. Lincoln, which he did, acted in good faith, under advice of counsel, and under an honest belief that he had a right to remove these stakes. In order to recover any such damages as that, the plaintiff must satisfy your minds, by a preponderance of the evidence of the case, that the defendant, in the act which he complained of, acted knowingly and willfully and maliciously, and in utter disregard of'the rights of others, intending to do what he knew would be a wrongful act, for the purpose of injuring the plaintiff in this case. I say, in considering that question, you are to find it, if you find it at ail, from the consideration of all the facts and circumstances in the case, and that by a preponderance of evidence, indeed, in a civil case like this is, you must find all the elements which go to make up the plaintiff’s case, by a fair preponderance of all the evidence. If you find for the plaintiff in this case, you will specify in your verdict the amount of damages which you find. On the other hand, if you find for the defendant, you will simply say he is not guilty. ■ | [
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Sherwood, J.
In February, 1869, the husband of the defendant died, and by his will, which was duly probated, left his farm, consisting of about ninety acres (with fifty acres improved), to his wife for life, remainder to his four minor children in fee. His wife, the defendant, has, since her husband’s death, always lived upon the farm with her children, and with them has ever since carried it on.
On or about the twenty-second day of August, 1873, the defendant borrowed two hundred dollars of complainant and gave him her note for the same at ten per cent., signed by her brother, A. F. Shattuck, as surety. After the giving of this note, and in 1877, Mrs. Hass made a verbal arrange-, ment with her sons to surrender her life estate to them upon the condition that they should care for, maintain and support her so long as she lived, and thenceforward they had control of the property and managed it under that agreement, except as the use of the same was given over to complainant as hereinafter stated. After the note became due, and in April, 1879, complainant brought suit upon the same against the makers, in the Cass circuit; and pending this suit the following arrangement was entered into by the parties (Shattuek consenting thereto.)
“ This agreement witnessetli that I, Sarah J. Hass, of the township of Howard, in Cass county, Michigan, being justly indebted to Henry Kimmerle, of Lagrange, in said county, in the sum of two hundred dollars, and interest thereon at. ten per cent., from August 22, 1873, upon a note of that date, signed by me and by Alonzo F. Shattuek, have, for the purpose of paying the same and costs in a suit commenced for the recovery of same, do hereby rent and to farm let to said Kimmerle all the land in said Howard township in which I have a right, the same being about ninety-two acres in the north half of section four, formerly owned by Squire Hass, to have, hold, use and en joy the same until the reasonable rents thereof shall pay said debt, with said interest accruing and to accrue, and said costs.
Dated April 21, 1879. Saeaii J. Hass. [Seal.]
Witnesses : D. W. Hurd, K,. Cook.”
This contract was made without the knowledge of the children, and it was not approved by them after they became aware of its existence. The defendant and Shattuek claim that the arrangement was to effect a discontinuance of the suit upon the note, as well as to secure its payment, and that this was so expressed at the time the agreement was made. The complainant, however, took judgment upon his note, without the knowledge of either of the makers, at the June term in 1879. The complainant took possession of the farm under the agreement, except that portion of the house in which defendant lived, and rented it to one Abbott, who worked it upon shares for complainant until the spring of 1882, when, having some difficulty, he left the premises, and defendant purchased his interest in the crops then growing upon the farm, and she and the children have, since the first of September, 1882, excluded the complainant, and have used and occupied the property, claiming that complainant, in August, abandoned the use of the premises to the defendant, and that he had then had it a sufficient length of time, if properly used, to satisfy the note.
On the thirtieth day of August the complainant caused execution to be issued on the judgment, and levied upon the property of Shattuek, which was taken thereon; and thereupon, on the first day of September, Shattuek filed his bill of complaint in the circuit court to be relieved from the payment of said judgment, and a decree was finally entered in said cause, May 18, 1882, perpetually staying the judgment against Shattuek. After the complainant had thus obtained his judgment against the defendant, and Shattuek had obtained a decree in substance that he was no longer liable, complainant again sought to regain the possession and use of the farm under the contract of April 21, 1879, to satisfy the judgment, which he claimed was wholly unpaid.
The defendant and her children forbade his doing this, and when he made the attempt to enter and use the premises he was successfully resisted by defendant and her children. Thereupon he filed his bill in this case and asks the circuit court of Cass county, in chancery, to place him in possession of the farm, or some other person, and compel the defendant to carry out the contract of April 21st, until the payment of his judgment, damages, interest and costs, was made. On the eighth day of March the circuit judge entered a decree declaring the contract of April 21st in full force, and giving the complainant possession, turning the defendant out of her house, and enjoining her and the children from interfering with complainant’s movements in the premises. From this decree the defendant appeals to this Court.
It is difficult to see how the complainant’s suit can be sustained upon this record. By the decree in the first suit it must be conceded Shattuck was entirely relieved from paying the note or judgment; and it is further apparent that the defendant, not being a party to that suit or the proceedings taken therein, cannot be bound by the decree, or any clause thereof made therein. There seems to be no question but that the contract entered into April 21,1879, though very indefinite and imperfect in many things, was intended when made to give to the complainant the use of the farm until the rents and profits or use thereof should be sufficient to satisfy the claim of complainant.
The defendant claims and testifies that the irse of the garden and house was reserved by her when she made the arrangement with Mr. Kimmerle, and that she did not understand that the writing excluded her therefrom. The circumstances, we think, rather corroborate this view than otherwise; still, that is not very material, in our view of the case.
The complainant concedes by his testimony that he took possession by his tenant of the property, though he claims he never realized anything from his occupation, but the evidence tends strongly to show that if such were the fact it was not the fault of defendant. The evidence tended to show that the complainant went into the occupancy of the premisos by his tenant, Mr. Abbott (who was on the farm when the contract was made), in 1880, and controlled the property until the first of August, 1882, — about two years and six months. It is true, there was some interference with the tenant and men of complainant on account of the manner in which they used the farm, and, as the evidence tends to show, not without some cause, from the carelessness and neglect of the tenant; but nothing, apparently, which would not have been obviated by a proper and farmer-like use of the premises.
On the thirtieth day of August, 1882, the complainant went to the farm of the defendant, where she lived, and then told her, as she testifies, that he would not have anything more to do with the farm or her, and told Shattuck the same, and that he should collect his judgment; and he says, in his answer to the suit against him by Shattuck, he “ abandoned it, * * * and, upon the continued failure of the said Sarah J. Hass to surrender possession, of said house, and also upon the failure of said contract to produce anything to apply upon said judgment, this defendant surrendered his possession and right under said contract to said Sarah J. Hass, who had, in fact, never parted with the possession of said premises; * * * that upon his abandonment of all his rights under said contract, for the reasons stated, said Sarah J. Hass continued to occupy said premises, and your orator took out execution on said judgment, ” Here is a complete surrender and abandonment of the premises under the contract to the defendant, and an acceptance of the same by her, shown by the complainant’s own statement. It is quite unnecessary to consider the other testimony upon the subject.
It is entirely unimportant, so far as this ease is concerned, whether the complainant ever received anything upon the contract for the use of the farm or not; if the abandonment was complete, his interests therein and right to enforce them were gone. What his rights are upon his judgment, or to what extent it may be satisfied, or in what manner, are not questions now before us.
It sufficiently appears that, at the time the complainant commenced this suit, he had no equitable rights left to enforce under the contract of April 21, 1879; and, as no others are relied on, the decree must be
Beversed and bill dismissed, with costs.
The other Justices concurred. | [
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Sherwood, J.
On the 15th day of July, 1858, Yictorie Bivenett made her last will. She then had four children, two daughters and two sons, neither of whom was married.
After giving her wearing apparel and certain other personal property particularly specified to her daughters, in equal shares, she then bequeathed her real estate and all her other personal property to her four children, by name, “ in equal proportions to each, share and share alike;” and then added the following clause : i£ And in the event of either of my said sons or daughters dying before my death, then and in that case my said estate shall be divided among the survivors, or their legal representatives, share and share alike.”
The daughter Emma married Frederick Bourquin in 1860, and died in 1873, leaving two children, George and Emma Bourquin, as her only heirs at law. The testatrix died on the 6th day of December, 1881. The main question, under the will is, are Mrs. Bourquin’s two children entitled, under the will of their grandmother, to the share their mother would have taken had she survived the testatrix ?
The judge of probate for the county of Wayne decided that the two grandchildren were entitled under the will to the share bequeathed to their mother; and on appeal to the circuit court for the county of Wayne the decision of the probate court was affirmed. The case now comes before us on special findings of fact and of law by the circuit judge. How. Stat., § 5812, reads as follows :
“ When a devise or legacy shall be made to any child or other relation of the testator, and the devisee or legatee shall die before the testator, leaving issue who shall survive the testator, such issue shall take the estate so given by the will, in the same manner as the devisee or legatee would have done, if he had survived the testator; unless a different disposition shall be made or directed by the will.”
Under this section the intention of the law-making power is unmistakable. It is very clear that not only are lapsed legacies avoided in the cases mentioned in the statute, but its provisions necessarily settle the question made in this case in favor of the children of Mrs. Bourquin, unless by the clear and unequivocal language of the will a different interpretation is made to appear. If there is any reasonable doubt about the question, the statutory construction must prevail, and the judgments of the two courts already given should be sustained.
A large number of authorities might be here collated on either side of the question presented, but a review of the conflicting opinions would rather tend to confuse than elucidate the proper solution of the question, and could servo no useful purpose. The natural feeling of the testatrix towards her grandchildren, as shown by the testimony, pretty well indicates what should be the proper construction of the clause of the will we are now considering. When important rights are created by the use of language conveying the intention of the parties, under the ordinary and commonly-accepted meaning of the same among persons not acquainted with its technical legal signification, that meaning should be applied in construing the instrument under which such rights are created. To do otherwise would be not to apply, but to pervert the law.
By the term “ legal representatives ” in this will was evidently meant the lawful heirs ; a different construction is not claimed by either party. It is only in case of the death of one of the four children of the testatrix that she desired any of the property to go to “ legal representatives ” of any of her children. If the “legal representatives ” intended are .confined to those of the survivors, as claimed by counsel for appellant, then the term has no meaning in the will, because survivors could have no legal representatives. A will must be so construed that each word means something, if possible, and this cannot be done unless the words “ legal representatives ” mean the legal heirs of Emma Bourquin, which will entitle her children to their mother’s share (had she lived) in the estate of the testatrix; and this, I think, is the true construction of the will.
The following are some of the cases and authorities which may be consulted with interest upon the questions involved, as they are not free from doubt. 2 Redf. Wills 44, 45, 78, 79; Johnson v. Johnson 3 Hare 157; 1 Jarm. Wills 328; Branson v. Hill 31 Md. 190; Moore v. Lyons 25 Wend. 119; Bridge v. Abbot 3 Br. Ch. Cas. 224; Smith v. Palmer 7 Hare 225; King v. Cleaveland 26 Beav. 26; Holloway v. Radcliffe 23 Beav. 163; King v. Cleaveland 4 DeGex & J. 477; Winter v. Winter 5 Hare 306; Edwards v. Symons 6 Taunt. 213; Garey v. Whittingham 5 Beav. 268; Locker v. Bradley 5 Beav. 593; Stopford v. Chaworth 8 Beav. 331; Salisbury v. Petty 3 Hare 93 ; Jarvis v. Pond 9 Sim. 549; Coulthurst v. Carter 15 Beav. 421; Ive v. King 16 Beav. 54; Baines v. Ottey 1 Mylne & K. 464; Gray v. Garman 2 Hare 268; Smith v. Smith 8 Sim. 353; Harrison v. Foreman 5 Ves. 207; Cotton v. Cotton 2 Beav. 67; Bond's Appeal 31 Conn. 183; Ram on Wills 96; Gittings v. M’Dermott 2 Mylne & K. 69; Doe v. Wilkinson 2 Term 209; Doe v. Dring 2 M. & S. 448; 2 Jarm. Wills. 742; Bender v. Dictrick 7 W. & S. 284; Howard v. Amer. Peace Society 49 Me. 288; Areson v. Areson 3 Den. 458; Minter's Appeal 40 Penn. St. 111; Lessee of Hauer v. Sheetz 2 Binn. 532; Russell v. Long 4 Ves. Jr. 551; Roebuck v. Dean 2 Ves. Jr. 265; Fisher v. Hill 7 Mass. 86; Ballard v. Ballard 18 Pick. 41; Hooper v. Hooper 9 Cush. 122; Moore v. Weaver 16 Gray 305; Esty v. Clark 101 Mass. 36; Wimple v. Fonda 2 Johns. 288.
The views here expressed are not in conflict with the decisions of this Court heretofore made . Eberts v. Eberts 42 Mich. 404; Rood v. Hovey 50 Mich. 395; Porter v. Porter 50 Mich. 456; Ireland v. Parmenter 48 Mich. 631; Toms v. Williams 41 Mich. 564; Conrad v. Long 33 Mich. 80.
The law favors that construction of a will which will make a distribution as nearly conformed to the general rule of inheritance as the language will permit; and favors equities rather than technicalities. Letchworth’s Appeal 30 Penn. St. 175; Johnson v. Ballou 28 Mich. 392.
The findings in the case of what Mrs. Bivenett said after her daughter Emma died, as to the interest of the latter’s children in her estate under the will, was supported by the evidence, which I think was admissible, and fully confirms the construction herein given to the clause in controversy. It is, however, upon the language of the will itself that the conclusion herein expressed is reached.
On the strength of certain conveyances an objection is raised on the part of appellees that appellants have no interest in the subject-matter of this litigation sufficient to enable them to appeal. It' is not shown that they have conveyed away their interest in the personal estate of the testatrix. The objection on this point is not well taken.
I think the judgment of the circuit court affirming that •of the probate court fully sustained by the findings, and .should be affirmed, with costs of both courts.
Cooley, C. J. and Champlin, J. concurred.
Campbell, J.
I do not think the statute applies to save .any rights to the children of the deceased daughter, because, in my view, the will strictly confines the estate to the surviving children of testatrix. | [
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Carr, C. J.
The proofs taken on the hearing of this proceeding in circuit court indicate that there was no material dispute between the parties as to the facts. On the 3d of February, 1955, a special election was held in defendant school district, at which certain questions were submitted to the voters. The first proposition had reference to the issuance of bonds, in an amount not exceeding $220,000, for the purpose of raising money to build and equip a schoolhouse. The second question, as stated, contemplated an increase in the tax rate provided by article 10, § 21, of the Constitution (1908) by adding-10 mills on the assessed valuation of property in the district, the period of such increase being 20 years, for the purpose of raising funds for building and furnishing the schoolhouse sought to be constructed.
It is conceded that under the Constitution of the 'State, art 3, § 4, only those voters having property •assessed for taxes within the district were entitled to vote on the first proposition. The inspectors of election, however, were incorrectly advised by the secretary of the school board that electors who were not taxpayers should be allowed to vote on such question. It is conceded that 30 ballots were cast on proposition No 1 by parties who did not have property assessed for taxes in the district. It further appears that 23 additional ballots were cast by parties whom the records do not affirmatively show were qualified to do so. Assuming, however, that the 53 votes in question were considered as cast in favor of the issuance of bonds, and deducted from the affirmative vote, there remained a majority of 74 ballots, as disclosed by the canvass, favoring the bond issue.
On leave granted by the circuit court of Bay ■county, plaintiffs were permitted to file an information in the nature of quo warranto against the school ‘district and the other defendants for the purpose of testing the legality of the election, insofar as the first proposition submitted was concerned. There is no issue presented in the case with reference to the approval of the second proposition, that is, the increase in the millage rate. In their pleading plaintiffs relied on the failure to observe, in the voting on the bond issue, the limitation imposed by article 3, §4, of the Constitution (1908). A motion to dismiss was made by defendants on the ground that the information was insufficient. Thereupon plaintiffs were allowed to amend by alleging that the result of the election was affected .by the improperly cast ballots. Defendants filed answer and the cause proceeded to hearing.
Following the taking of the proofs and the submission of briefs by counsel, plaintiffs moved for leave to further amend their information in such manner as to aver that the irregularity in the conduct of the election, as shown by the testimony, was-intentional. It was, in effect, the claim of counsel for plaintiffs that the secretary of the school board intentionally, and presumably through improper motives, misrepresented to the inspectors of election the law applicable to the qualifications of voters on the bonding proposition. The motion was denied, the trial judge indicating in* his order that it came-too late and that the proofs taken did not support the proposed amendment. Final judgment was then entered dismissing the information. Plaintiffs have appealed, alleging that the trial court was in error in denying leave to amend and in entering the judgment in favor of defendants.
"We have carefully examined the testimony set out in the record and do not find therein any proper basis for a conclusion, or a claim, that the secretary of the school board intentionally misled the inspectors with reference to the qualifications of voters. It is a fair conclusion that he misunderstood the- statements as to the law made by an attorney whom he consulted, and that the irregularity of which the plaintiffs complain resulted from such misunderstanding. Fraudulent intentions may not be lightly assumed in a case of this nature, but must be shown by satisfactory proofs. The trial judge after listening to the testimony came to the conclusion indicated by his order denying leave to amend. As a general rule the allowance of amendments to pleadings rests in the discretion of the trial judge. Konstantine v. City of Dearborn, 280 Mich 310, 314; Randall v. Douglass, 321 Mich 492, 495. Under the circumstances, leave to amend was properly denied.
As before pointed out, the deduction from the affirmative vote on the bonding issue of the number of ballots cast by ineligible voters, together with the additional ballots questioned for lack of an affirmative showing, did not affect the result. The proposition carried by a margin of 74 votes. It is the theory of plaintiffs, however, that the provision of article 3, §4, of the Constitution (1908), above referred to, is mandatory, and that the mere receiving of improper ballots, without reference to the effect on the result, vitiated the election. We are not in accord with such claim. The section of the Constitution in question contains no provision indicating that a failure to strictly observe the voting limitation renders the election void. It has been repeatedly held by this Court that irregularities in the conducting of an election will not invalidate the action taken unless it appears that the result was, or may have been, affected thereby.
In Lindstrom v. Board of Canvassers of Manistee County, 94 Mich 467, 469 (19 LRA 171), it was said:
“ít may be stated, as a general rule, that the provisions of law relating to the manner of conducting elections will not be held so far mandatory as that a departure therefrom will result in the disfranchisement of a district or a class of voters, or the defeat of a candidate himself free from fraud, except in cases where the legislative intent that such departure shall have that effect is clearly and unequivocally expressed. This is a rule which has been applied in this State.”
Of like import is People v. Avery, 102 Mich 572, 574, where the Court declared that:
“The electors are not to be deprived of the result of their votes at an election by the mistake of election officers, when it does not appear to have changed the result. Under repeated decisions it is settled that the matters relied on here were irregularities, and did not invalidate the election. (Citing prior cases.)”
Likewise, in Thompson v. Cihak, 254 Mich 641, in which plaintiff sought to restrain the issuance of bonds, authorized at a special school election, because of a number of irregularities occurring in the conduct of the election, it was held that the voters should not be disfranchised because of failure to follow the statute in all particulars. It is significant to note that one of the claims was that the election inspectors received and counted ballots cast by persons not eligible to vote on the matter. With reference thereto it was said (p 644):
“Nor will the fact that election inspectors permitted unqualified persons to vote invalidate the election unless it is affirmatively shown that such wrongful vote overturned the declared result of the election. Sargent v. City of Santa Fe, 24 NM 411 (174 P 424).”
The court also made the following observations which we think are applicable to the situation in the case at bar (p 646):
“In the final analysis, we must consider the fact that this election was honestly and fairly conducted. Slight irregularities are more than apt to creep into the procedure. As a rule those in charge of such an election are not lawyers. When, as in this case, even doubt is raised in the briefs presented as to which law the election should have followed, it is evident that a knowledge of the law and its details is frequently not possessed by the officers and electors in a fractional school district, whose honesty and fairness are not even remotely questioned. To hold that slight irregularities, for which the voters were not to blame, should invalidate the election, is contrary to public policy. Unless the irregularities consist of failure to observe mandatory provisions, the neglect to follow which will invalidate the election, they will be overlooked, in the absence of fraud or coercion.”
The foregoing language was quoted with approval in the recent decision in Carnes v. Livingston County Board of Education, 341 Mich 600, 605.
Among other cases in which the question here involved has been considered is Attorney General, ex rel. Miller, v. Miller, 266 Mich 127 (106 ALR 387). It was there determined as a matter of fact that no actual or intentional fraud in the conduct of the election involved, of such character as to affect the entire ballot in the township, had been shown. In discussing the effect of allowing unregistered voters to cast their ballots, it was said (pp 146, 147):
“In Attorney General, ex rel. Seavitt, Jr., v. McQuade, 94 Mich 439, the Court held the rule laid down in Paine on Elections, § 499, and McCrary on Elections (3d ed), §§ 190-192, founded on good sense and sustained by the authorities. The rule was :
“ ‘When fraud on the part of the officers of election is established, the poll will not be rejected, unless it shall prove to be impossible to purge it of the fraud. When the result at a poll, as shown by the returns, is false and fraudulent, and it is impossible to ascertain the actual vote from the other evidence in the case, the vote of such poll must be wholly rejected.’ * * • *
“ ‘To warrant setting aside the election, it must appear affirmatively that the successful ticket received a number of improper votes, which, if rejected, would have. brought it down to a minority.’ Cooley, C. J., People ex rel. Williams, v. Cicott, 16 Mich 283, 325 (97 Am Dec 141).”
In view of the claim of counsel for appellants that the provisions of article 3, § 4, of the Constitution (1908) must be construed as mandatory and given the effect of vitiating an election in which ballots are received from persons not entitled to vote on bonding issues, without reference to the effect on the result, the holding of this Court in Toole v. State Board of Dentistry, 300 Mich 180, is significant. The case involved the validity of an election, under the referendum provision of the Constitution, on PA 1939, No 122, which regulated the practice of dentistry. It appeared that in many precincts of the State voting machines were used, the total number of referendum votes cast thereon being 156,202. The act was approved- by a majority of 218,456 votes. 'It was not in dispute that the ballot prepared for use on the voting machines did not comply with the constitutional requirements in force at the time. Citing prior decisions of the Court, it was held that the election was not void because of the failure to-properly state the question on the voting machines, the holding being summarized as follows:
“While ballot prepared for use on voting machines did not comply with the then command of the Constitution, where result of election would not be changed if all ballots on voting machines were dis regarded the election will not be rendered void (Const 1908, art 5, § 1; art 17, § 3; PA 1939, No 122).” (Syllabus 3.)
Counsel for appellants call attention in their brief to cáses involving factual situations of a wholly different nature than that involved in the case at bar. Among these decisions is Attorney General, ex rel. Stillson, v. Stillson, 108 Mich 419. There an election in a certain township in Newaygo county was challenged on the ground that the inspectors of election had employed an interpreter who remained within the railing of the polling place and conversed with electors who came therein for the purpose of voting after receiving their ballots and before marking and depositing the same. The conversations between such voters and the interpreter were carried on in a foreign language. It further appeared that the interpreter so employed opposed the election of one of the candidates for the office of commissioner of schools, the relator in the quo warranto proceeding. It was found that the improper influence that the interpreter had the opportunity to exert may have changed the result of the election in the county and that, in consequence, the vote of the township should be rejected. Obviously the case illustrates the situation' presented where, through a flagrant disregard of 'the requirements of the' election laws, voters generally are exposed to improper influences.
In Dearborn Township School District No. 7 v. Cahow, 289 Mich 643, there was involved the validity of an election on the question of issuing school district bonds. Under article 3, § 4, of the State Constitution (1908), as amended at the general election in November, 1932, the husbands and wives of electors who had property assessed for taxes in the district were entitled to vote. On the election the spouses of qualified electors were excluded, in violation of the constitutional provision in question. The defendant, who was president of the board of education of the school district, declined to certify the bonds on the ground that persons legally qualified to vote were prevented from doing so. Mandamus proceedings were instituted in consequence of such refusal. Issuance of the writ was denied by this Court on the ground that an eligible class of voters had been excluded from participating in the election and that as a result it was void. In the case at bar we have a wholly different situation. Here the number of votes improperly cast was definitely fixed. There is no dispute between the parties in this respect. Assuming that all such ineligible voters, together with those whose qualifications did not appear of record, voted for the bonding proposition, the result was not changed by deducting from the affirmative vote the total number of ballots cast by ineligible, or possibly ineligible, voters. This was not the situation presented in the Dearborn Township School District Case.
The judgment of the trial court is affirmed, with costs to appellees.
Bijtzel, Smith, Sharpe, Boyles, Reid, Dethmers, and Kelly, JJ., concurred.
As amended in 1948. See PA 1949, p 688. — Reporter.
CL 1948, § 338.201 et seq. (Stat Ann 1953 Cum Supp J $W29[11 et seq.).—Reporter. | [
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Cooley, C. J.
This is a bill for specific performance, and stands upon demurrer. The bill shows that on August 14, 187S, defendant was owner of an executory contract for the sale to him by Jesse Hoyt of certain pine lands, a certain interest in which he had previously assigned to Fulsom & Arnold. On the day named defendant entered into the following contract with complainants:
“August 14, 1878. I have this day sold to Gates & Fay all of a certain lot of land known as the Hoyt land, containing 2800 acres of land, in town 24 north, range 4 east, in consideration of their making the payment due said Hoyt on said land contract, and a further consideration of one dollar to me, which is hereby confessed, and a further consideration of a contract with them for the mutual lumbering by them and myself of the timber on said lands, wherein we mutually join in costs and expenses of land and expenses of lumbering, and each owning one-lialf of said logs or lumber from there; Gates & Fay providing, or causing to be provided, the necessary means to or for the prosecution of the work, charging to the lumbering, moneys and interest at ten per cent., and they holding the logs or timber for security for the same.”
This contract was signed by the parties respectively, but after its execution it was discovered that an error had occurred in drafting it, which consisted in the omission of words to show that each party was to be owner of one-half the land as well as one-half the logs. This error the bill prays may be corrected. It wras also discovered that by mistake defendant had made his-assignment to Fulsom & Arnold broader than was agreed, and had covered by it the land described in the contract with complainants. Hoyt, in consequence, refused to recognize rights in any one but Fulsom & Arnold, and it became necessary for defendant to bring suit against Fulsom, Arnold and Hoyt to have his rights in the land established. This suit was not brought to a conclusion until October, 1882, when it terminated favorably to the defendant. Meantime complainants had made certain advances to defendant towards expenses, amounting in all to $650, and liad also paid $28 for taxes, upon an understanding that when the litigation with Fulsom, Arnold and Hoyt was concluded the contract with them should be performed. Defendant, however, now declines to recognize their rights.
The bill prays that the contract between complainants and defendant may be established and decreed to be of full force and effect; that it may be declared and decreed that defendant on his part execute and perform said contract; that it may be determined what amount complainants ought to pay to or for defendant, and to whom such payments should be made, for the purpose of paying the amount of the unpaid purchase price owing to said Ho.yt on the contract between him and defendant at the time of the making of the contract with complainants, and also for any taxes and interest, and that complainants may be permitted to pay the same; that upon such payment defendant may be decreed to convey to-complainants the title to the lands; that complainants be-authorized to proceed in the lumbering of said lands in furnishing the necessary means and expenses therefor, and to' charge against the logs and lumber taken from said lands such expenses and the amount that shall be decreed for them to pay on account of the lands, together with ten per cent, interest, and that thereupon they be decreed to be the owners of one-half the logs and lumber and the proceeds thereof remaining after the deduction of such payment and expenses, and also of one-half of said lands, and that defendant be decreed to be the owner of the other half. There is also a prayer for other or further relief. The defendant interposed a general demurrer, and the circuit court dismissed the bill.
The obvious difficulty with the contract which complainants seek to have enforced is that it does not definitely fix the rights of the parties, or furnish or indicate any means whereby they can be determined. The contract is a contract of sale in consideration of a money payment, and also of a contract for lumbering the land. The amount of the money payment can be ascertained, but, in respect to the contract for lumbering, it is only agreed that complainants shall make the advances, and be allowed ten per cent, interest upon them, and that the proceeds shall be equally shared. "When shall the lumbering begin ? How rapidly shall it proceed ? If complainants should decide to take off all the lumber in a single year, would they have a right to do so as against the objection of the defendants, who might think the interest of the parties would be best subserved by spreading the operations over ten or twenty years ? If, on the other hand, the defendant desired to complete the lumbering in a single year, would complainants be in default if they should refuse to proceed with the necessary expedition for that purpose ?
These are vital questions, and they are not solved by the contract. Neither can they be determined by any known custom prevailing among lumbermen as to the rapidity with which timber shall be removed from pine lands. One owner will desire to realize as speedily as possible; • another will think his interest will be best subserved by saving his timber, in anticipation of further advance in market value. Until, therefore, the parties have agreed between themselves on this subject, their contract is imperfect, and it is impossible to give it effect. The courts cannot perfect for the parties the contracts which they have left imperfect. The contract in this case was evidently provisional, and contemplated a further contract, in which we may suppose the details of the proposed arrangement would be definitely fixed upon and settled; but, if either party refuses to enter into such further contract, there is no way of compelling it. Neither is there any way of enforcing the provisional contract, when it appears that the parties have failed to agree upon essential terms.
It is urged, however, that the contract should be enforced, as far as possible, and that there is no difficulty or ambiguity so far as the conveyance of the land is concerned. Bur we do not think this is a severable contract. An interest in the land was to be conveyed in consideration of a payment of money, and also of a contract for lumbering the land. Complainants cannot demand a conveyance of the land on making the money payment, for the undertaking to make such payment was not the sole inducement to the sale. Indeed, it may not have been the main inducement; we cannot say,how that was. What is certain is that defendant made a preliminary or provisional contract for the sale of lands in consideration of a sum of money, and also of a contract to be subsequently agreed upon, and the subsequent agreement has never taken place. To compel a conveyance on payment of the money only would not be enforcing any contract the parties have made, and would therefore be beyond the power of any court.
The decree must be affirmed with costs.
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Cooley, C. J.
The bill in this case is filed to enforce the specific performance of an alleged parol contract. Its allegations are as follows:
That in the year 1859 the defendant Samuel R. Bumpus, who is the father of complainant, was the owner of a farm in the township of Van Burén, which he still holds and occupies as a homestead. That complainant became of the age of legal majority in February, 1859 ; that he had a younger brother, whose name is Myron M. Bumpus; that the father of complainant, and the other defendant, who is complainant’s mother, were desirous that he should remain with them, carry on the farm, and manage their business interests; that they were also anxious to give said Myron a good education, and fit him for the law, or some other avocation which he might choose; and that complainant made an oral agreement, whereby it was mutually agreed as follows: that complainant should remain at home, cultivate, carry on and manage the said farm, keep the same in good repair, and furnish the defendant a good and comfortable support, and furnish all moneys necessary to educate said Myron, and pay all his necessary expenses while procuring a legal education, and should also furnish said Myron with all necessary funds to open a law office, and aid him pecuniarily in establishing himself in law business, or in any other business which he might choose to pursue; and that in consideration of the foregoing it was mutually agreed that complainant should have and be entitled to whatever real and personal estate he might thereafter acquire by means of his personal labor, industry and management, over and above the real and personal estate then owned by tbe defendant Samuel B. Bumpus, whenever he should thereafter demand a conveyance and transfer of the same to him.
That the value of said homestead at the time of the making of said contract was $6400, and that of the personal estate not to exceed $500, and that was all the property the defendants or either of them then had.
That immediately after the making of the contract complainant entered upon the management of the farm, and continued in such management until about June 20,1877, and that during that time he paid all the expenses of said Myron at school. That said Myron abandoned his purpose of procuring a legal education, but did nothing towards the management of the farm; that complainant was always willing to aid him in procuring a legal education and in establishing himself in the law, or in any other avocation.
That in the year 1864 compfainant purchased of one Dickerson a tract of land in Yan Burén containing about twenty-nine acres, which he paid for, and which was conveyed to his mother. In I860 he purchased of one Hyatt another parcel containing twenty-two acres, another containing eighty acres, and another containing forty-seven across and ten lots in the village of Bawsonville, all of which were also conveyed to his mother. That in 1867 and 1868 ’he purchased of different parties a number of lots in Bawsonville, which were conveyed to complainant himself. These purchases were made from stock upon the farm, and from complainant’s earnings in the management.
That in 1871 complainant purchased of one Yost an eighty-acre lot in Ypsilanti, and the same was conveyed to him and said Myron jointly.
That, in reliance upon his contract with defendants, complainant made many valuable improvements upon the homestead, and the other lands mentioned, and accumulated a large amount of personal property: that he supported the defendants and managed the business as his own, and that soon after December, 1876, he requested the defendants to transfer to him the personal property which he had accumu lated, and that they also transfer to him the lands bought of Dickerson and Hyatt, as above stated, and conveyed to defendant Mary Ann Bumpus, but that defendants refused to comply with the request, and on or about the twentieth day of June, 1877, they drove complainant off from the old homestead, and refused to allow him any compensation for his labor and services, though on his part he had fully performed his contract with them.
The prayer is that defendants be decreed to perform their said contract, and to convey to complainant the said Dickerson and Hyatt lands, and to account for rents and profits.
The defendants were at the trouble of answering this bill, which was altogether unnecessary, as it is very plain that it makes out no ease for equitable relief. The contract itself, as set out, was in some particulars as vague as possible, and especially in all that relates to what was to be done for Myron in furnishing him with a legal education, and assisting him to get a start in business. Whether parties making such a contract would contemplate a cost of one thousand dollars, or of twenty thousand, no one but themselves could say; for the one sum might in some cases be made to answer or the other be required. Courts cannot enforce such contracts: they must rest for their performance upon the honor and good faith of the parties making them.
But an objection entirely fatal is that complainant has had the lands purchased of Dickerson and Hyatt, and done what he pleased with them. He seems to have made the purchases, and nothing appears to show that he was precluded from taking a conveyance to himself, or from having it made to any third person at discretion. What he did do was to have the lands conveyed to his mother; for what reason we do not know, nor is it important. He purchased the lands, as he claims he had a right to do, under the parol contract, and he must be deemed to have taken them under the contract, and in satisfaction of its provisions. That contract had nothing to do with what should be done with the lands, after-wards. He could no more, after having them deeded to his mother, call upon her to convey them to him because of his having had a right to take them himself under the contract, than he could make the same demand upon any stranger to whom he might have had them conveyed. The case is one of the purchase of lands by a party who causes them to he conveyed to another instead of to himself: and in such a case, unless the grantee gives back a written declaration of trust or some contract to convey to the purchaser, he has a legal right to retain what has been deeded to him. There is no implied trust in favor of the purchaser (Iiow. Stat. § 5569); and as the alleged contact does not reach the case, there is therefore no basis for the bill.
The bill should have been dismissed, whatever were the proofs. But the complainant’s evidence fails to support the allegations of the bill, and the decree which was rendered in his favor is warranted neither by the bill nor by the proofs. The decree awards to complainant eight thousand dollars for his services for defendants, “in substitution for the specific performanceLof the contract,” but gives the defendants the liberty to make payment in land, which the court proceeds to describe by metes and bounds. Such a decree has no basis whatever. It must be reversed, and the bill dismissed with costs of both courts.
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Campbell, J.
Davis sued the defendant bank for a balance on deposit, and the suit was defended on the ground that the money belonged to his deceased wife. He recovered' judgment, and defendant brings error.
The facts on which the controversy turned were substantially these : In 1872 plaintiff desired to open an account on his own behalf, and on applying to the bank was told he had already one account in his name, and therefore, by their usages, could not open another. The account already opened was for money belonging to his mother, deposited in his name for convenience. It was suggested to him that he might deposit his own money in an account kept in the name of his wife, subject to his own draft, and the account was so opened, and added to from time to time until it left abalance of about $1900 standing, when his wife died in 1882. After her death the bank refused to recognize his right to the money, and he brought this suit to recover it.
A number of minor questions were raised concerning the introduction of testimony and upon some other rulings, but, in our opinion, they become unimportant. If it was proper for plaintiff to show title in himself to the money in question, we can see no reason why he could not*show all. of the circumstances connected with the origin and history of the deposit, and his wife’s statements in derogation of her interest. And in like manner, if this theory was made out, we can see no reason for considering the rulings on any but the main question, upon which they all really- turn.
The argument was full, and covered a great deal of ground, but, in our view, the merits of the suit lie within a very narrow compass. The contract of a depositor with his banker does not differ in any material way from any other contract, whereby one person becomes bound to take charge of and repay another’s funds. As between banker and depositor, there can be no doubt that the bank will be protected in paying out money in such way and on such terms as the depositor has authorized. And, on the other hand, where a contract is not in writing, it is equally clear that its real character and terms may be made out by testimony, and that the contracting party can lawfully control his own funds until he has disposed of them, and that it can make no difference in what name the account is kept, if it is understood .to be his account, and has not been put beyond his control by some act-which he cannot revoke.
In the present case the testimony does not tend to show that the bank ever contracted with anybody but plaintiff, or recéived funds on this account which were not his funds. The case he made out, and which the jury must have found true, was that, while deposited in the wife’s name, it was not intended to be for her benefit, or to be beyond the husband’s right to withdraw. Any idea of a gift to her was clearly negatived. Her name was only another form for his name, and so agreed. The bank-book is no contract, and is only one of the means of indicating the state of the funds. "Whatever presumptions may arise from it, and whatever protection may be given to acts innocently done on that presumption, it cannot exclude explanatory evidence. The contract was made with plaintiff, and with no one else, and the bank -is answerable to him to fulfill that contract.
There is no principle of law which makes the mere placing of money or property in another’s name an irrevocable gifts to that person. But this arrangement falls short of even] this, because in law it was merely a contract between twoj persons that one should open an account in the name of a third person, the original depositor having a reserved right to draw the sums credited. At common law no one could sue on an express contract, except the parties to it. Under the equitable action for money had and received, a beneficiary may sometimes sue, but this can only be where the parties have given him such a right as transfers the fund to his control. The money belonging to one person cannot cease to belong to him until he does some act to dispose of it. The cases heretofore determined in this Court are stronger cases than the present in favor of plaintiff’s rights: see Burtnett v. First National Bank of Corunna 38 Mich. 630, and Detroit Savings Bank v. Burrows 31 Mich. 153. In the former case the bank had no dealings whatever with the plaintiff, but held his money deposited by an agent in his own name. In the latter it was understood that the wife, in whose name the money was deposited, was to draw all the checks, but they were to be payable to the husband’s order, which made the case more analogous to the present. In both the question was treated as one of fact. The decisions referred to in the opinions in those eases, as well as in the arguments, sustain that doctrine.
The suggestion that the estate of Mrs. Davis is not represented in the cause has no force. In every action at law upon a contract the contest must be between the two alleged contracting parties, and if the contract and. its breach are made out, the prevailing party must have judgment. The case is, in our opinion, a very plain one.
The judgment must be affirmed.
The other Justices concurred. | [
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Smith, J.
These 2 cases, which were consolidated for trial, arise out of an intersection collision at the junction of Bristol and Linden roads in Genesee county. In the one case, plaintiff Ruth Krause sought damages for the injuries she sustained and obtained a jury verdict in the sum of $6,700. In the other case, Frederick Krause, the husband of plaintiff Ruth Krause, obtained a verdict in the sum of $1,177.10, a judgment being entered in this amount for his expenses and loss of services.
About 5:45 o’clock in the afternoon of February 20, 1953, Mrs. Krause was driving an automobile in an easterly direction on Bristol road. At the same time defendant Dale J. Ryan, who was 17 years old at the time, was driving his mother’s automobile in a southerly direction on Linden road. Bristol is a through highway at its intersection with Linden road, stop signs being posted on Linden at the appropriate corners thereof. (PA 1949, No 300, § 671 [CLS 1952, § 257.671, Stat Ann 1952 Rev § 9.2371].) Ryan at the time was on his way to attend a basketball game im Linden, Michigan, and had with him in the automobile 6 other youths, 3 of them occupy ing the front.seat with the defendant. Upon reaching the intersection, Ryan failed' to observe the “stop” sign and thereafter struck plaintiff’s automobile on the left side. Approximately l/10th of a mile before the intersection of Bristol road there was a warning sign on Linden road signifying “Stop Ahead.” Defendant testified that he did not see this warning sign, or the stop sign, or the plaintiff’s automobile before the accident, except that he obtained a brief glimpse of the automobile immediately prior to the impact when his brother, who was sitting in the front seat, yelled, “Look Out.”
Plaintiff testified that, when approximately 450-500 feet from the intersection of Linden road, she reduced her speed from 50 to 30 miles per hour. At about 400 feet from the intersection she made observations right and left and saw no other cars approaching. She again looked to the left when approximately 100 feet from the intersection and observed defendants’ automobile about 160-170 feet from the intersection, proceeding at an estimated speed of 45 to 50 miles per hour. Assuming that the defendant would stop at the intersection and that he could do so, plaintiff did not look again until defendants’ automobile -was practically upon her.
At the close of plaintiffs’ proofs, defendants made a motion for a directed verdict on the ground that plaintiff Ruth Krause was guilty of contributory negligence. Ruling on this motion was reserved. It was renewed again at the conclusion of all the proofs and decision again was reserved. * After -the jury’s verdicts, defendants moved for judgment non obstante veredicto, which was subsequently denied. Appellants claim that under the facts plaintiff driver failed to show freedom from, and is guilty of, contributory negligence as a matter of law, and ■that the trial judge erred in denying their motions for a directed verdict and subsequent motion for judgment non obstante veredicto. It is unnecessary to cite the numerous authorities that on a motion for a directed verdict the testimony must be considered in the light most favorable to plaintiffs.
The appellants stress our holding in Holley v. Farley, 289 Mich 676, which case also involved (at the intersection of an arterial and subordinate highway) an automobile collision. Verdict against the driver on the arterial highway was directed in the trial court and this Court upheld the direction on the ground of contributory negligence on the part of such driver. Appellants insist that our holding-in the Holley Case justified a similar result in the case at har.
The determination of this case requires our consideration of the rights and duties of an automobile ■driver upon an arterial highway as opposed to those ■of a driver upon an inferior or subordinate road. The former road, the arterial highway, is a highway designed to expedite the flow of traffic. Cars must ■of necessity move thereon in great volume and at relatively high speeds. Within the lives of many of us, travel thereon at speeds the maintenance of which, -on a crowded highway, would once have been deemed negligence per se has become commonplace, nay re•quired. As a consequence, the public authorities and the law have become properly solicitous of the arterial driver, driving at high speed a powerful machine in close proximity to others equally peril•ously engaged. Thus, the erection (as in the case at bar) of signs commanding all crossing traffic to come to a halt before venturing into the arterial road, and the judicial recognition, as in Arnold v. Krug, 279 Mich 702, 707, that the driver on an -arterial highway has a right-of-way which is “something more than the privilege of going through the intersection in advance of a car which reaches it at the same time.”
The driver on the arterial, we have decided, is the favored driver. It is not necessary in approaching an intersection, as we said in Arnold v. Krug, supra, 707, that he “have his car under such control * * * that he may stop at once and avoid collision with persons who may illegally come into his. path.” Lacking notice otherwise, he may assume that others using the highways will comply with the rules of the road and properly posted signs and he is not guilty of contributory negligence in acting upon such assumption. It should not, however, be assumed from the foregoing that he may proceed blindly upon the arterial, secure in the supposition that he can do no wrong. He must remain alert to the hazards surrounding him and with which he-is confronting othérs. "We do not propose to attempt an enumeration of the various actions required of him. So far as the question in this case is concerned, he is undoubtedly required to make observation of the traffic apparently to cross his path from intersecting streets and to act reasonably in the light of such "observation. Thus we reach the point of divergence between this case and that urged upon us by’ appellants, Holley v. Farley, supra. In the Holley Case the favored driver failed completely in this essential duty. We need not speculate as to. what' he might have seen had he observed and what he might then, with such information, have done as. a reasonably prudent man. Cases there may well be in which even the1 "favored driver may be negligent as a matter of law1, as where he takes no action for his own safety after having observed a car approaching on a subordinate road, erratically driven, at a grossly excessive rate of speed, and threatening an imminent crossing of his path. In this extremity he may no longer rely on his favored status. He. must act as best he can for the protection of all involved. But such is obviously the unusual case. In the case before us the favored driver made the required observation of the approach of defendants’ car. With the knowledge derived from such observation, plus the knowledge of her own favored status, she reached the conclusion that she could safely maintain her course and speed. She did so, but collision ensued. In such a situation reasonable minds could differ as to whether or not she exercised reasonable care and the question of contributory negligence was properly submitted to the jury. We cannot say that under such circumstances plaintiff driver was guilty of contributory negligence as a matter of law. Breker v. Rosema, 301 Mich 685 (141 ALR 867), and authorities cited therein. See, also, generally, Marrs v. Taylor, 327 Mich 674; Trune v. Grahl, 337 Mich 659; and Soltar v. Anderson, 340 Mich 242.
In so doing, do we repudiate the established ease law of this State? We hold not. The answer to the cases cited by our Brother Dethmers in support of his position is that the case law evolved in other fact situations (collisions at intersections unguarded by the peremptory posted command to stop, pedestrian cases, and the like) does not here control. We recognize, of course, that we ever seek certainty in the law, groping for that universal rule which we have but to discover and enunciate in order that justice may follow the wrong as the day the night. Have we found it in the “rule,” applicable in all cases involving carelessness, that negligence is a want of that care which reasonable men would exercise under the same or similar circumstances? Having this rule, can we cite broadly from one negligence situation to another? We fear not. The field of negligence is too broad. We find within it all kinds and conditions of men, from the surgeon at the operating table to the child at the edge of the highway, measuring with uncertain gaze and rising panic the speed of the oncoming truck against the distance to safety. Both situations, it is true, involve care, and both involve humans, but there the similarity stops. Even in that relatively narrow area of negligence involving moving vehicles, intersections, pedestrians, stop signs, arterial highways and traffic lights we find an infinite variety of problems, each with its peculiar circumstances, its unique considerations of care or the lack thereof. At the moment our problem is the determination of negligence on the high-speed, heavy-volume artery of traffic, known as the expressway, the throughway, or the arterial highway. It has its own peculiar considerations,, arising out of its peculiar hazards. It cannot be solved by “rules” taken from negligence opinions in other fields. The policy behind the construction of the great expressways is not involved in the cases-relating to ordinary street intersections (as to which we had a statutory right-of-way for many years- and before that a common-law preference). Such cases may guide us, but they cannot control our decision here. It is for that reason that we reject as-precedent on the problem before us most of the cases cited by our learned Brother. “We have constantly held,” he reminds us, “that a favored driver approaching an intersection who seasonably observes-another vehicle approaching it at right angles and then proceeds in reliance on the right-of-way without giving the other vehicle further heed is guilty of contributory negligence as a matter of law equally as if he had not looked at all.” So we have, and so,, we assume, we shall continue to hold. (But not with respect to arterial highways, guarded by the posted command to stop before entering.) He cites, for this indisputably correct statement, MacDonald v. Skornia, 322 Mich 370, 372 (dissent): (“Neither street is a so-called stop street or preferred over the other”); Block v. Peterson, 284 Mich 88, 94: (“Plaintiff did not establish that US-10 was a stop highway”); Koehler v. Thom, 285 Mich 593, 594: (“Neither road is superior to the other, there being' no stop signs at this intersection”); Nelson v. Linderman, 288 Mich 186, 188: (“Neither is superior to the other”); and Martin v. City of Detroit, 314 Mich 77, 80: (“Neither of the streets in question was a stop street”). Of the remaining 2 cases cited at this point, it does not appear from the opinion in Boerema v. Cook, 256 Mich 266, whether a stop highway was involved or not, and in Lacaeyse v. Roe, 310 Mich 591, the disfavored driver entering the stop highway from the subordinate road was found guilty of contributory negligence as a matter of law, a decision of little comfort to one urging the opposite result.
It would serve no useful purpose and unnecessarily prolong this decision were we to parse the remainder of our Brother’s opinion. We might discuss in detail just what we decided in Arnold v. Krug, supra, what we said heretofore concerning it, and whether that part of the Arnold opinion (p 708) saying, “he (the favored driver) must keep such lookout ahead and to the sides and down intersecting highways as a reasonably prudent person would do in order to discover possible danger and must act carefully upon the existing conditions,” was discussion pertinent to the driver’s alleged duty to slow down as he approached the intersection. It seems, however, sufficient to observe that the precise holding was that the defendant on the trunk-line highway was free of actionable negligence “as a matter of fact and law.” Justice Dethmers’ cited case of Wehling v. Linder, 248 Mich 241, a 1929 case which involved a driver on a street given “the right-of-way” by city ordinance, might be discussed at length, but Jamieson and Brown’s observation in their Michigan Automobile Law (1st ed), p 61, is well taken and to the point: “It is difficult to reconcile Wehling v. Linder with the other cases in this group, especially with Weil v. Longyear, 263 Mich 22, a later decision.” Likewise, the complete inapplicability of the cases involving pedestrians at intersections might detain us shortly but their differentiation under the negligence formula, “same or similar-circumstances,” seems obvious.
The fact of the matter is that we have an acute-problem on our highways and it is getting more acute with every newly-built turnpike, every newly-constructed expressway. If we reach, with respect to it, a reasonably sound solution we will have done more than passing well, and the problem of the-pedestrian, of collisions at unguarded intersections, and of the myriad other traffic situations may well wait their day before us. It is not today. Today’s problem is this: What constitutes negligent driving for a driver on a throughway when he sees approaching a driver on a subordinate side road? Much could be said for the solution reached by Maryland, that the arterial driver has an absolute right-of-way, provided he is driving in a lawful manner. See Greenfeld v. Hook, 177 Md 116 (8 A2d 888, 136 ALR 1485); see, also, Morris v. Bloomgren, 127 Ohio St 147 (187 NE 2, 89 ALR 831). It is our opinion, however, that at this time the question of due care should normally remain a jury question. Why? For answer we turn to Mr. Justice Holmes, in The Common Law, p 150: .
“The question what a prudent man would do under given circumstances is then equivalent to the question what are the teachings of experience as to the dangerous character of this or that conduct under these or those circumstances; and as the teachings of experience are matters of fact, it is easy to see why the jury should be consulted with regard to them. They are, however, facts of a special and peculiar function.. Their only bearing is on the question, what ought to have been done or omitted under the circumstances of the case, not on what was done. Their function is to suggest a rule of conduct.”
We reject, then, the theory that the arterial driver who has made one observation of the car burdened with the peremptory command to stop, has thereupon determined that it is safe to proceed, has made another within a hundred feet of the intersection and has thereupon reached a like decision, is negligent ■as a matter of law in not making additional observations. When is the observational duty discharged? At 75 feet? At 50 feet? Must there be continuous observation? Our rules of conduct must be both realistic and workable. If the driver on today’s arterial highway remains alert to the hazard immediately ahead of him, to ■ his right,- to his left, and does not fail to keep constantly in mind the driver crowding him from the rear, he is doing a reasonably good job of driving. Whether or not he should, in addition to these tasks of considerable magnitude, also keep under more or loss continuous observation the driver approaching the arterial from some side road is, under our present law, a question for the jury. It is their function, as stated by Mr. Justice Holmes, to suggest a rule of conduct based on their experience with respect to the dangerous character of such conduct. Our cases there leave it and we should not, in the present state of traffic, disturb. The Maryland and Ohio solutions may some day come to Michigan. That day is not now. But we should not, in grasping at the shadow of universality, of certainty in the law, lose our grip on reality. The reality is that our through highways carry vast amounts of traffic at high speeds and demand the utmost from a driver thereon. In these sur roundings of imminent peril we will not, as a matter of law, rivet his gaze to a side road. We will not add to his burdens, and his dangers, and the dangers of those around him, by a judge-made and impossible-rule of conduct.
The judgments in both cases are affirmed. Plaintiffs shall recover costs, but only 1 taxation is permitted in consolidated cases.
Butzel, Sharpe, and Kelly, JJ., concurred with Smith, J.
Boyles, J., concurred in affirmance.
See CL 1948, § 691.691 et seq. (Stat Ann and Stat Ann 1953 Cum Supp § 27.1461 et seq.).—Reporter. | [
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Sharpe, J.
This is an action for an accounting and b,n injunction pending final disposition of the cause. Plaintiff, Harriet Burton Beed, is a stockholder of Burton Abstract & Title Company, and is tbe owner of approximately 10% of its corporate stock. On June 7, 1950, she filed a bill of complaint in the circuit court of Wayne county against the above-named defendants in which she charges the defendants with illegal and unlawful withdrawal of corporate funds and conversion of the same. She' particularly charges Ralph Burton with having" received large sums of money over a period of years in addition to his salary, which sum of money represents 1% of the net billings of the corporation, and this sum is alleged by plaintiff to have been paid without authorization or approval of the board of directors of defendant company.
The answer of Frank Burton and Ralph Burton shows that on or about June 11, 1941, the following" resolution was adopted by the board of directors:
“Moved and supported and carried unanimously that Ralph Burton, vice-president and sales manager of this company, be given in addition to his salary, 1% of the monthly sales of this company,, the same being an allowance for sales expenses.”
Defendant company alleges that at the June 19,. 1950, meeting of the board of directors of the above company, all of the 1% payments were ratified and confirmed and further payments terminated. This case first appeared on the chancery pre-trial docket on December 19, 1951, and was adjourned to January 30, 1952, then to February 6, 1952, February 13, 1952, February 27, 1952, and then returned to the call. The case appeared on the call March 20, 1952, and was adjourned to the April term, the September term, the November term, and then to the April term, 1953, at which time it was adjourned to October 6, 1953.
On January 15, 1954, the trial court entered an order adjourning the trial date to April 13, 1954. The order contained the following:
“All parties shall be ready for trial on said adjourned date; in the event any party or parties are not ready for trial on said date, said cause shall be dismissed, or default entered, as the case may be.”
On April 10, 1954, plaintiff filed a motion for adjournment of the trial date for cause, giving- as her reasons the following:
“1. The medical and physical condition of said plaintiff at the present time is such that a presentation of her case in court in person, by testimony, and a submission to the rigors of cross-examination inherent in the present proceeding- and instant cause, would, in considered medical opinion, be an active and serious threat to her life, or result in extremely serious consequences. The disease from which she is suffering and for which she is taking treatment now, is one that has been prevalent in her family, namely high blood pressure and apoplexy resulting therefrom. Three brothers and one sister of plaintiff have met sudden death under strain, from the above cause. This plaintiff believes that present treatment will alleviate this condition.
■“Plaintiff has also a history of approximately 7 months suffering from acute bursitis, which is still present, and has aggravated the above-described high blood pressure. Said bursitis has, in addition to giving plaintiff excruciating pain, temporarily crippled her left arm.
“2. Plaintiff’s foregoing condition described, has prevented her from taking any action, or going through any strain of negotiation and talk, necessary to retain trial counsel and acquaint them with the instant cause.”
On April 13, 1954, three affidavits were submitted in support of plaintiff’s motion to adjourn the trial. The affidavit of Dr. Albert L. French contained the following :
“Deponent further says that on April 10, 1954 he examined Mrs. Harriet Burton Reed, in his professional capacity, at 521 Harmon road, Birmingham, Michigan, and found her condition to be as follows :
“Marked cardio-vascular hypertension with precariously high blood pressure at 210 systolic over 100 diastolic.
“Very painful sub acute bursitis of deltoid muscles of both shoulders with limited use of left arm. Mrs. Reed has been confined to her home and should refrain from all undue physical and mental strain, which would result in a grave prognosis.”
The affidavit of Dr. L. C. M. Conley stated:
“Deponent further says that at this time Mrs. Reed’s physical and medical condition is as follows:
“Patient is suffering a bursitis in the both shoulders, aggravating a very high blood pressure — systolic 206, diastolic 98. She should not be called upon to exert herself physically or endure excitement until her pressure has been reduced to a safer level.”
The affidavit of Dr. George P. Raynale stated:
“Deponent further states that Mrs. Reed’s physical and medical condition at present is as follows:
“Bursitis — (subdeltoid)—left shoulder, with a great deal of pain. There is also beginning trouble of the same sort in her right shoulder. This pain is so severe at times that it necessitates lying down. She has been under treatment for this condition the past 4 months.”
The record shows that all continuances except 1 were asked for and granted to plaintiff. On April 13, 1954, counsel appeared for all parties, at which time counsel for plaintiff asked for a further continuance. The trial court denied plaintiff’s request for further continuance, whereupon plaintiff asked for a nonsuit. The trial court, in denying the motion for continuance and later nonsuit, stated:
“I think the record likewise should show that at no time was the plaintiff ever without counsel. There were 2 counsel involved at all times, and I can see no reason why these 2 counsel cannot proceed with the trial. I will grant you the right to take the plaintiff’s deposition before you close your proofs, but I think we should proceed now and attempt to take the testimony, in order to dispose of this matter.
“As I indicated before, the defendant corporation is at a distinct disadvantage in having this matter pending, because of its relationship with the insurance commission and other State officials. Under the circumstances, I must deny your motion for a continuance and ask the plaintiff to proceed. * # *
“Well, under the circumstances, I doubt my authority to take a voluntary nonsuit without the consent of counsel for the defendants.
“In this case, the record shows that all continuances, save 1, were granted to the plaintiff. The 1 exception was when counsel for Ralph Burton’s estate asked for a continuance to prepare a substitution.
“I think the defendants, being ready to go to trial at all times and now being ready to go to trial, are entitled to a decision upon the merits of the case. Under the circumstances, I will deny your right to enter a voluntary nonsuit and will enter an order of dismissal of the bill of complaint, with prejudice.”
On April 16,1954, a decree was entered which contained the following:
“This cause having been assigned to this court for trial and all previous adjournments save 1 at the request of the plaintiff having been granted as indicated by this court on the record, and this court having on January 15, 1954, entered a certain order granting to plaintiff a further continuance to April 13, 1954, for the purposes and upon the conditions therein set forth, which said order was made and entered upon consent of all attorneys of record; and,
“This case having been duly and regularly come on for trial on April 13, 1954, the date specified in the aforesaid order, and for the reasons stated by this court upon the record,
“Therefore, it is ordered, adjudged and decreed that the above-entitled cause be and it is hereby dismissed, with prejudice, and with costs to be taxed in favor of the defendants and against the plaintiff.”
The record also shows that on June 18, 1953, by stipulation and order of the court, defendants William B. Giles and Walter A. Kleinert were dismissed as parties defendant.
Plaintiff’s reasons and grounds for appeal are, in part, as follows:
“The court erred in entering a decree of dismissal with prejudice where no testimony on the merits was entered by either party plaintiff or party defendants.
“The court erred in ruling that the affidavits of 3 reputable physicians provided no just cause for adjournment of trial date.”
This ease involves an interpretation of Michigan Court Rule No 38, § 1 (1945), which reads as follows :
“The plaintiff may at any time, before answer filed, and on the payment of costs, discontinue his suit by notice of discontinuance filed in the cause and giving notice thereof to the defendant or his attorney. Thereafter he may discontinue, on the same terms, only (1) upon filing a stipulation to that effect signed by the defendant, or his attorney, or (2) on the order of the court or judge made on special motion in which the grounds for such discontinuance shall be set forth and which shall be supported by affidavit. After a recoupment, set-off or cross bill lias been pleaded by a defendant no discontinuance against such defendant may be had except by consent.”
Plaintiff urges that under the above rule she is entitled to a dismissal of her case without prejudice as a matter of right, and that this right continues up to the time that defendants have entered upon their defense in open court. Plaintiff relies upon Slowke v. Altermatt, 293 Mich 360; and Wicks v. Wayne Circuit Judge, 299 Mich 252. In the Slowlce Case, supra, we held that plaintiff had a right to discontinue his case up to and including the putting in of proofs in behalf of plaintiff. In the Wicks Case, supra, we held that plaintiff had the right to discontinue his case as a matter of right even though defendant’s counsel had made his'opening statement to the jury selected to hear the facts.
We note that both of the above eases were decided in 1940 and 1941, at a time prior to the adoption- of the present amended rule.
Defendants rely on Pear v. Graham, 258 Mich 161. The Pear Case was decided in 1932. The 1931 Court Rule No 38 in effect at that time reads, in part, as follows:
“The plaintiff may, at any time, before answer filed, upon notice to the defendant or his attorney, and on the payment of costs, discontinue his suit by common order filed in the cause. Thereafter he may discontinue, on the same terms, only (1) upon filing a stipulation to that effect signed by the defendant, or (2) on the order of the court or judge made on special motion in which the grounds for such discontinuance shall be set forth and which shall be supported by affidavits.”
Under the above rule, we held that it was within the discretion of the trial court to refuse to permit plaintiff to take a nonsnit. It should he noted that both the 1931 Court Rule No 38 and the 1945 Court Rule No 38 provide that plaintiff may discontinue his suit at any time before an answer is filed, and that thereafter he may discontinue upon the filing of a stipulation signed by defendant. Howevef, the 1945 Court Rule provides that the stipulation may be signed by defendant’s attorney.
Both the 1931 Court Rule No 38 and 1945 Court Rule No 38 provide that discontinuance may be had on the order of the court or judge made on special motion in which the grounds for such discontinuance shall be set forth and which shall be supported by affidavit. The 1945 Court Rule No 38 also provides:
“After a recoupment, set-off or cross bill has been pleaded by a defendant no discontinuance against such defendant may be had except by consent.”
It clearly appears that under the 1931 Court Rule No 38 and 1945 Court Rule No 38 plaintiff may discontinue his case at any time prior to the time defendant files an answer. If the defendant files an answer, recoupment, set-off or cross bill, in which affirmative relief is asked, then discontinuance may be had only if defendant consents thereto. Both rules also provide for a discontinuance upon the order of the court made on special motion supported by an affidavit.
In the Pear Case, supra, at p 165, we said:
“The rule will not accomplish its obvious purpose unless it is broad enough to prevent discontinuance by nonsuit as well as by motion to discontinue: ■ Discontinuance by nonsuit works the same injustice to the defendant as would the granting of plaintiff’s motion to discontinue. For the purpose under consideration there is no difference between taking-a nonsuit and discontinuance by motion.”
In view of onr holding in the Pear Case, supra, based upon the .1931 Court Buie No 38, almost identical with the 1945 Court Buie No 38, we conclude that the granting or denial of a nonsuit rests in the sound discretion of the trial court. It is urged by-plaintiff that the trial court abused its discretion in denying plaintiff’s motion for a nonsuit. In coming to pur conclusion upon this issue, we have in mind that.the bill of complaint was filed more than 5 years ago, and that all of the adjournments except 1 were made at the request of plaintiff, either because of the employment of new or additional counsel or because of the physical condition of plaintiff. We also note that the trial court, before denying plaintiff’s motion for a nonsuit, made the following statement:
“Mr. Thompson, I am not depriving you of the right to take the testimony of the plaintiff. Before you close your proofs, I will give you an opportunity to take the plaintiff’s testimony. All that I want you to do is proceed on other testimony, and we will take such testimony as we can until the plaintiff’s testimony is necessary. Then I will give you time to take the plaintiff’s deposition; or, if need be, I will go to some convenient place to take her testimony, to make sure that her health is not jeopardized in any way.
“I will take judicial notice that both present counsel for the plaintiff have tried lawsuits in this court, and have tried them well. They are reputable counsel and competent counsel, and they are able to proceed in the trial of the matter. With such knowledge and such notice, I am asking them to proceed.”
In the Pear Case, supra, at p 166, we quoted with approval from 14 Cyc, p 396 (see, also, 18 CJ, p 1150 and 27 CJS, p 164), the following:
“ ‘It is considered that the granting or the refusal of leave to dismiss, to discontinue, or to take a non- suit is a matter of practice resting in the discretion of the court, which discretion is to be exercised with reference to the rights of both the parties.’ ”
We are not unmindful of the fact that on the date plaintiff’s motion for a nonsuit was denied, she, according to the affidavits of 3 physicians, was unable to appear in court and undergo the rigors of a severe cross-examination. Yet, we are not unmindful of the fact that the defendants have a right to a determination of the allegations made against them. Moreover, there is nothing in the record to indicate when, if ever, plaintiff will be able to appear in court and participate in the trial of the cause. Under the circumstances of this case, we conclude that the trial court did not abuse its discretion in dismissing plaintiff’s bill of complaint with prejudice.
The decree of the trial court is affirmed, with costs.
Carr, C. J., and Butzel, Smith, Boyles, Reid, Dethmers and Kelly, JJ., concurred. | [
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Champlin, J.
The writ of error in this case brings up for review an order made by the circuit court for the county of Kalamazoo, quashing a writ of capias ad respondendum which had been issued in the cause, and upon which the defendant had been arrested and held to bail, for the reason that the affidavit upon which the order to hold to bail was based was insufficient to authorize defendant’s arrest. The affidavit appears in the margin.
Tbe question raised has been under review in this Court in the following cases: Proctor v. Prout 17 Mich. 473; Enders v. People 20 Mich. 233; Hackett v. Judge of Wayne Circuit 36 Mich. 334; Swart v. Kimball 43 Mich. 451; People v. Heffron ante, p. 527.
The principle deducible from these cases is that an affidavit which is used as the basis of a writ which will deprive a person of his liberty, must not only set forth the facts and circumstances in detail, and not conclusions or inferences-from facts, but they must be facts within the personal knowledge of the deponent.
. Applying these principles to the affidavit in question, it appears to be defective in that portion which contradicts the alleged representations; their falsity does not appear to be alleged upon the personal knowledge of the deponent, and the statements respecting the falsity of the representations are too indefinite to possess the quality of legal proof. If the deponent was ealled to the witness stand for the purpose of proving the falsity of the representations, it would not be competent for him to testify in the general loose and vague manner contained in his affidavit. Such testimony would not be admissible to establish the fact that the repre sentation's made were false. The affidavit upon which a person is held to bail must be of the same legal quality, as evidence, as would be required at the.trial to establish the facts set up or relied on for cause of arrest.
The authorities referred to in plaintiff’s brief apply to cases of pleadings, and not to affidavits or examinations which form the basis of a writ or warrant to arrest or imprison a person. What would be quite sufficient in a pleading, would, in most instances, be entirely insufficient in an affidavit to hold to bail. The reason is obvious. In pleading, the evidence is not required to be set forth. But no arrest can be made except •upon sworn evidence of facts.
The order appealed from is affirmed.
The other Justices concurred.
State of Michigan, County of Kent — ss: Thomas J. Sheridan, of the township of Nelson, county of Kent, and State of Michigan, being duly-sworn, deposes and says that he is a member of the firm of T. J. Sheridan & Co.; that said firm is composed of himself and Caroline A. Sheridan, and that said firm is now, and for four years prior to this date has been, doing business and still is doing business in said Kent county, under the firm name and style of T. J. Sheridan & Co.; that he makes this affidavit as well in behalf of said Caroline A. Sheridan as of this deponent, and that he is personally acquainted with and cognizant of the facts stated and set forth in this affidavit. And this deponent further says that said firm is about to commence an action of trespass on the case in the circuit court for the county of Kalamazoo, in said State, against Edmund S. Briggs, of said county, for fraud committed by him as hereinafter set forth. And this deponent further says that heretofore, to wit, on or about the 20th day of April, A. D. 1883, in the township of Nelson, in said county of Kent, the said Edmund S. Briggs, of said county of Kalamazoo, and State of Michigan, with intent to cheat and defraud the said Thomas J. Sheridan and Caroline A. Sheridan, co-partners as aforesaid, and to obtain fraudulently from them a large quantity of shingles, to wit, eighty thousand shingles, did then and there falsely represent and pretend to said T. J. Sheridan & Co. that he, the said Briggs, was worth from fifteen thousand to twenty thousand dollars in property, which was then free and clear of incumbrances: that he was then the owner of a grist-mill and planing-mill, situated at Vicksburg, in said county of Kal amazoo and State of Michigan, and that the same was then free and clear of incumbrances, and that he, the said Briggs, paid his debts and obligations as they came due, which said foregoing statements and representations were false, and were well known by said Briggs to be false, and were then and there made by the said Edmund S. Briggs as aforesaid, for the purpose of obtaining possession of the shingles aforesaid, and cheating and defrauding said T. J. Sheridan & Co. out of the same. And the said T. J. Sheridan & Co., believing the said false pretenses and representations so made as aforesaid by the said Briggs to the said T. J. Sheridan & Co. to be true, and relying upon the same as true, were then deceived thereby, and were then and there induced, by means of said false pretenses and representations so made as aforesaid by the said Briggs, as aforesaid, to deliver, and did then and there deliver, to said Briggs said eighty thousand shingles at said township of Nelson, in said county of Kent, of the value of two hundred and sixty dollars of the goods and chattels of the said T. J. Sheridan & Co., and the said Briggs-then and there received the same into 1ns possession and took them away. And at the time of purchasing said shingles aforesaid, he, the said Briggs faithfully promised the said T. J. Sheridan & Co. that he would pay them for the said shingles the sum of two hundred and sixty dollars, and interest thereon, sixty days after date.
Whereas, in truth and in fact, the said Briggs was not worth, at the time of making such representations as aforesaid, money enough to pay his indebtedness, and was then and there in fact insolvent, and did not then own. the grist-mill and planing-mill at Vicksburg aforesaid, free and clear of incumbrances; but held the same subject to certain real estate mortgages of six thousand dollars, which would be, as this deponent believes, the full value of said property, and said Briggs did not pay his debts and obligations when due, but on the contrary he then owed large sums of money, and then had past-due obligations which were wholly uncollectible, and that the said Briggs has not paid said T. J. Sheridan & Co. for said shingles, or any part thereof, but has neglected and refused so to do, and now justly owes said T. J. Sheridan & Co. for said shingles the sum of two hundred and sixty dollars, and interest thereon, to the great wrong of the said T. J. Sheridan & Co.
And this deponent further says that he verily believes that upon the aforesaid facts said T. J. Sheridan & Co. have a good cause of action against the said Edmund S. Briggs in an action of trespass on the case, and claim damages in the sum of five hundred dollars; and that the judgment that the said T. J. Sheridan & Co. will be entitled to recover against the said Edmund S. Briggs will be lost unless a capias ad respondendum issue against him, and that he be held to bail according to law.
Thomas J. Sheridan.
Subscribed and sworn to the eleventh ) day of October, 1883, before me. J Frank F. Kutts,
Notary Public in and for Kent County, Michigan. | [
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Sherwood, J.
The plaintiff took out a summons in assumpsit before a justice of the peace in the city of Detroit, and served the same himself upon the defendant and made return thereof, accompanying the same by his own affidavit of service, claiming his right to make such service under the statute (How. Stat. § 6827), which says it “may be served by any competent person.” There were no pleadings in the case on the part of defendant, and plaintiff proceeded ex parte to judgment before the justice.
The defendant appealed to the circuit, where the cause was tried without pleadings on the part of the defendant. Upon the trial the plaintiff relied npon an account against the defendant, which he claimed had been transferred to him by one Horace Williams, for recovery, and the only proof made thereof before the magistrate was an affidavit made by Williams in the state of New York that the defendant owed the plaintiff the amount claimed on the account; also a bill of sale of the account, made and signed by said Williams, and witnessed by one James C. Hoyt, in the state of New York, both of which were received in evidence without further proof. The same evidence was offered on the trial on the appeal, and admitted.
Objections were made by the defendant at the circuit to the jurisdiction of the court, and to the sufficiency of the proof of the assignment of the account to the plaintiff. Both of the objections were well taken. The plaintiff could not serve a summons in his own favor; and there was no competent proof of the assignment of the account to plaintiff.. Parmalee v. Loomis 24 Mich. 242; Morton v. Crane 39 Mich. 526.
■ The judgment must be reversed; and the court having no jurisdiction in the case, a new trial will not be granted.
The other Justices concurred. | [
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Cooley, C. J.
This is a case of accounting in respect to partnership matters. It was referred to Iiojd Post as special commissioner, who made a report to which both parties took exceptions. The judge who reviewed the exceptions overruled them and entered decree for the amount reported due.
We have gone over the accounting with the assistance of counsel for the parties respectively, and are of opinion that the conclusions of the special commissioner were substantially correct. The changes we should be incliued to make would be few, and would leave the general result modified but slightly. Under these circumstances the decree should stand affirmed. The case does not involve questions of law, and is therefore not discussed. The costs in this Court should be apportioned between the parties; and as Mr. Field appears to have caused the record to be printed, he should recover one-half his taxable disbursements after deducting one-half the taxable disbursements of the complainant.
The other Justices concurred. | [
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Kelly, J.
Plaintiff and appellant city of Dear-born, a Michigan municipal corporation, on February 16, 1955, filed its hill of complaint seeking a declaration of rights and an injunction restraining defendant and appellee from acquiring property in the city of Dearborn for a turnpike highway. On March 8, 1955, the trial court granted the petition to intervene of the Michigan Free Highways Protective Association.
After numerous pretrial conferences a stipulation of facts and issues, signed by all parties, was filed on May 2, 1955. This stipulation set forth that the Authority was contemplating constructing a turnpike highway:
“Starting from connections with US Route 24 and the Monroe Expressway in the vicinity of Rock-wood and extending northerly to the west of Detroit and to the east of Pontiac, thence northwesterly passing to the east of Flint to a terminal connection with US Route 23, southeast of' Saginaw, for a total distance of 115 miles, more or less * * * (otherwise known as the) North-South Turnpike— Initial Section.”
It was also stipulated that:
“The North-South Turnpike — Initial Section will traverse the city of Dearborn as follows:
“From the Industrial Expressway Interchange the project will continue in a northerly direction over Rotunda drive, immediately east of the River Rouge, to the Michigan Central Railroad tracks, thence in a general westwardly direction over South-field highway and thence in a general northwestwardly direction over the Michigan Central Railroad tracks and Michigan avenue about 3,300 feet west of Southfield highway, thence continuing northwardly, west of Fairlane, over Ford road, the Dear-born city-Dearborn township line. North of Ford road in Dearborn township an interchange will be provided connecting to Ford road.”
The estimated construction cost for said turnpike highway is set forth in the stipulation as being between $186,000,000 and $191,000,000, said construction cost to be financed by revenue bonds. The parties to this litigation agreed that:
“It is the intent of the Authority to proceed with the sale of such bonds, the acquisition by purchase or condemnation of the necessary rights-of-way, and the construction of said North-South Turnpike— Initial Section forthwith upon the final disposition of this litigation.”
On the date designated for trial, namely, June 8, 1955, plaintiff filed a motion to discontinue, setting forth 2 main reasons for discontinuance: (1) That a change in the personnel of the Authority gave the city hopes that the difference between the city and the Authority could be eliminated• and (2) That the city had grave doubts that its action had not been prematurely instituted due to the fact that the Authority had not made a final decision as to the route of the turnpike.
Both defendant and intervenor objected to the motion for discontinuance and, after argument, same was denied. The plaintiff then requested a continuance of the trial so that an appeal could be taken from its motion to discontinue, and the court refused this motion. Plaintiff then declined to offer testimony and neither defendant nor intervening plaintiff offered testimony.
1. The first 4 questions presented to this Court in this appeal can be consolidated into the following-single question: Did the court err in denying both the motion to discontinue and the request to continue and making a determination without proofs being taken?
The stipulation filed in this cause established that the Authority had retained 2 nationally-known and recognized traffic engineering firms, of New York City and Baltimore, both of which firms were qualified as specialists in the traffic study field; that after 9 months of study these 2 engineering firms reported to the Authority on the results of their studies, and on September 28, 1954, the reports of said engineering firms were received and accepted by a resolution of the Authority. Further, financial advisers of New York City and Detroit recommended to the Authority that the project could be financed by the issuance and sale of turnpike revenue bonds; that bond counsel and financial advisers of the Authority were directed by the Authority to-prepare the necessary trust indenture, bond resolution, and other legal documents necessary to effect a sale of the revenue bonds to provide funds to finance the north-south turnpike. On April 7, 1955, the final traffic reports substantiating the previous preliminary reports were filed by the consulting engineers, and at a meeting held on November 3d, the Authority directed its bond counsel and financial advisers to take the necessary steps under the provisions of the turnpike act to obtain the requisite approval of the State administrative board and negotiate a sale of turnpike revenue bonds in an amount sufficient to finance the construction of said north-south turnpike.
The stipulation of facts and issues agreed upon and signed by all the parties to this action, including the plaintiff city of Dearborn, contained under the title “The Disputed Facts are These,” the following:
“A. That the proposed turnpike will necessitate the vacation, change, relocation, widening or alteration of existing streets, alleys and public grounds in the city of Dearborn.
“B. That the proposed turnpike will prevent plaintiff from furnishing adequate police and fire protection to all sections of the city.
“C. That because of the proposed turnpike plaintiff will be unable to carry out its proposed flood control program along the Rouge river.
“Defendant denies that any of the above results will be caused by the construction of its proposed turnpike, and are of no consequence to the determination of the issues involved.”
In 1945 this Court adopted Court Rule No 38 allowing the plaintiff to discontinue after answer filed on “the order of the court or judge made on special motion in which the grounds for such discontinuance shall be set forth and which shall be supported by affidavit.” While there are no Michigan cases construing the 1945 amendment to the rule, it is important to note that the portion of the rule raised in the present case is identical with Rule No 38 as it existed in 1931. This Court was asked to construe this rule in Pear v. Graham, 258 Mich 161. In the Pear Case, 2 days before the case was reached for trial, plaintiff filed a motion to dismiss the case because an indispensable witness conld not be presented to testify. In denying the motion the •circuit judge said (pp 163, 164):
“ ‘A discontinuance, whether it be voluntary or under the order of the court, as I understand it, is not res judicata as to the matters contained in the declaration, and another suit might be commenced upon the same claimed state of facts. * * * While the plaintiff has his right in court, of course, yet the defendant, in this sort of a case, has an equal right to a determination of the allegations made against him. * * * Therefore the motion to discontinue will be denied.’ ”
This Court sustained the trial court, stating:
“ ‘It is considered that the granting or the refusal of leave to dismiss, to discontinue, or to take a non-suit is a matter of practice resting in the discretion of the court, which discretion is to be exercised with reference to the rights of both the parties.’ 14 Cyc, p 396, and 18 CJ, p 1150, citing many cases.”
In the present case the trial court in denying the motion to discontinue stated:
“Inasmuch as a great public question is involved, if we assume that the status of the cause is that the defense has already entered on its proofs, the court is inclined to deny and would deny and does ■deny the motion. The court, however, is of the opinion that we do not have here a mere motion to discontinue prior to the commencement of trial. In this case, we have had a number of pretrial conferences and as a result of those conferences in this court which is a court with a pretrial docket having-local court rules establishing and governing its preIrial docket, and thereby placing this court in the -category of courts with a pretrial docket under the Michigan Court Rules, it is, therefore, significant and controlling that the stipulation of facts and issues during the pretrial proceedings has been filed. It was arranged that today we would supplement, or permit the plaintiff to supplement, and the defendant to supplement, the proofs as stipulated in the said stipulation.
“Therefore, it seems we have passed beyond the stage of the opening of trial or a mere showing of plaintiff’s cause of action. We’ll pass over into the second phase for the defendant to make some showing. At least, that would seem to appear as a proper interpretation of the stipulation of facts and issues as it now is before the court.
“Since both parties are municipal or State authorities, since the pleadings on their face show a very serious, grave and State-wide public interest is involved, and since the defendants do not consent to the discontinuance, the court’s holding is that the motion to discontinue be and is hereby denied.”
It is this Court’s opinion that the trial court did not err in denying plaintiff-appellant’s motion to-discontinue.
After plaintiff-appellant’s motion to discontinue was denied, plaintiff requested a continuance to enable it to take an appeal to this Court from the denial of its motion. The lower court denied this motion and ordered the trial to proceed. In its brief, plaintiff-appellant complains of this denial for continuance, stating:
“Plaintiff took the position that if it continued with the trial of the case it would prejudice what it considered its clear right to discontinue. Accordingly, no proofs were offered either by the plaintiff, defendant or intervenors. Quite obviously a trial court has a great amount of discretion in the matter of granting a continuance of trial. Admittedly plaintiff’s motion to discontinue was filed at a late hour. Nevertheless, plaintiff raised by its motion a substantial legal question and was entitled to sufficient time to appeal the adverse ruling without prejudicing its ability to introduce testimony on the issues raised by the pleadings.”
It is the opinion of this Court that the trial court’s denial of continuance for an appeal did not constitute an abuse of discretion or reversible error.
Plaintiff-appellant contends that the court could not render an opinion and decree without testimony being taken.
As has been previously referred to in this opinion, a series of conferences between counsel representing plaintiff-appellant, plaintiff-intervenor, and defendant-appellee, resulted in an extensive stipulation of facts and issues. There is also set forth in the stipulation the disputed facts, with the denial by the defendant-appellee that the complained results will be caused by the construction of the proposed turnpike.
The city of Dearborn had the opportunity to offer testimony, but declined to offer such testimony.
Prom the record submitted in this case this Court holds that the trial court was justified in proceeding to a final opinion and decree, and a declaration of rights and determination as to whether plaintiff should be granted injunctive relief.
2. Pour of plaintiff-appellant’s questions and 6 •of intervenor-appellant’s questions, as set forth in their statements of questions involved, are based •on the contention that the turnpike act violates the constitutional provisions of home rule as provided for in article 8 of the Michigan Constitution (1908). In refuting this contention, defendant-appellee calls •attention to the fact that article 8, § 26, provides that the legislature may by general law authorize the laying out, construction, improvement and main tenance of highways, bridges and culverts by the State and by the counties and townships thereof and by road districts.
The State’s interest in providing proper highways for travel in this State was commented upon by this Court in Loomis v. Rogers, 197 Mich 265, 276, wherein it was stated:
“While yet recognizing local interest in and a reasonable local control over highways, the present Constitution [1908] makes plain that their improvement for public travel is not to be regarded as solely and exclusively a matter of local concern, but of general public interest and State-wide importance.”
Again, in Attorney General v. Bruce, 213 Mich 532, 550, this Court said:
“ ‘All of the highway legislation now on the statute books is based on the theory that the entire State is interested.’ ”
In Moreton v. Secretary of State, 240 Mich 584, 588, this Court commented upon the interest which the State at large has in all public roads, as follows:
“In determining this question, it will be helpful to keep in mind the interest which the State at large has in all public roads and the policy which it has adopted in respect to their construction and maintenance. If ever the building and maintenance of highways was a matter of purely local concern, that time passed with the coming of the automobile into general use as a means of transportation. Good roads became economically necessary. To secure them, the old local public road policy was abandoned; and by appropriate legislation there was adopted a complete and comprehensive State-wide system, the basic theory of which is that the building of a highway in any section of the State is of interest to every other section; that it is a matter of State-wide concern rather than of any particular locality.”
The police power of the State and cities within the State was discussed in Attorney General, ex rel. Lennane, v. City of Detroit, 225 Mich 631, 638-641, as follows:
“The police power rests in the State. Neither the general language of * * * (home-rule act) nor any other provision of the home-rule act delegates to municipalities the general exercise of all of such police power. Nor do the constitutional provisions above quoted work such result. While the municipality in the performance of certain of its functions acts as agent of the State it may not as such agent fix for the State its public policy. * * * Unless delegated in some effective way the police power remains in the State. This is settled by the recent case of City of Kalamazoo v. Titus, 208 Mich 252, 261: * * *
“ ‘Political experiment has not yet produced, in this State, the autonomous city,—a little State within the State.’ * * *
(Also citing Clements v. McCabe, 210 Mich 207.) * * *
“In the provisions under consideration the city has undertaken to exercise the police power not only over matters of municipal concern hut also over matters of State concern,- it has undertaken not only to fix a public policy for its activities which are purely local but also for its activities as an arm of the State. * * * jf * * * the city possesses such of the police power of the State as may he necessary to permit it to legislate upon matters of municipal concern, it does not follow that it possesses all the police power of the sovereign so as to enable it to legislate generally in fixing a public policy in matters of State concern. This power has not been given it either by the Constitution or the home-rule act.”
3. Appellants contend that sections 4, 5 and 7 of the turnpike act are in violation of article 8,, §§27 and 28, of the Michigan Constitution (1908).
Article 8, § 28, of the Constitution, provides, in part:
“The right of all cities, villages and townships to' the reasonable control of their streets, alleys and public places is hereby reserved to such cities, villages and townships.”
Article 8, § 27, of the Constitution, reads:
“The legislature shall not vacate nor alter any road laid out by commissioners of highways, or any street, alley or public ground in any city or village or in any recorded town plat.”
Section 4 of the turnpike act (CLS 1954, § 252.104, Stat Ann 1953 Cum Supp § 9.1095[4]), provides:
“The authority is hereby authorized and empowered : * * *
“(i) To acquire in the name of the turnpike authority * * * by purchase or otherwise, on such terms and conditions and in such manner as it may deem proper, or by the exercise of the power of eminent domain in the manner hereinafter provided, such public lands, parks, playgrounds or reservations, highways or parkways, * * * or any lesser interest in private property; * * *
“(j) To designate the locations, and establish, limit and control such points of ingress to and egress from each turnpike project as may be necessary or desirable in the judgment of the authority.” (CLS 1954, § 252.104 [Stat Ann 1953 Cum Supp § 9.1095 (4)].)
The provision in the Constitution, art 8, § 28, that cities have the right to “reasonable control of their streets” was considered by this Court in Allen v. State Highway Commissioner, 338 Mich 407, involving a construction of the specific provision im Yoked herein. The Court in that case said (pp 415, 416):
“The right to reasonable control of their streets is not a gift of an arbitrary prerogative to the cities, villages and townships. The reasonableness of the city’s control of its streets is not to be within the final determination by the city in all cases, for that in practical effect could erase the word ‘reasonable’ from the constitutional provision. The reasonableness may be determined in accordance with the State legislature’s interpretation in some instances provided that such interpretation can be approved by the court. Interpretation can give rise to a justiciable question. The court would not ordinarily substitute its judgment for that of the city as to the control of the streets.”
Section 7 of the turnpike act (CLS 1954, § 252.107, Stat Ann 1953 Cum Supp § 9.1095 [7]) contains the following language:
“The authority is hereby authorized and empowered to acquire by condemnation or by the exercise of the power of eminent domain any lands, property, rights * * * and other property, including public lands, parks, playgrounds, reservations, highways or parkways * * * of any * * * municipality or political subdivision deemed necessary or convenient for the construction or the efficient operation of any project or necessary in the restoration of * * * property damaged or destroyed. Such proceedings shall be in accordance with and subject to the provisions of any and all laws applicable to condemnation of property in the name of the State highway commissioner under the laws of the State of Michigan, including, but not limited to, the provisions of Act No. 149 of the Public Acts of 1911, as amended; * * * Act No. 215 of the Public Acts of 1925 ; * * * and Act No. 352 of the Public Acts of 1925, as amended, being sections 213.171 to 213.199, inclusive, of the Compiled Laws of 1948.”
The Authority has elected to use PA 1925, No 352, section 1 of which provides:
“(i) The State highway commissioner and boards of county road commissioners are authorized and empowered to take property and property rights under the provisions of this act within the limits of any incorporated city or village in this State: Provided, however, That before any proceedings are taken under this act involving the taking of any property or property rights in any city or village for the changing, altering, opening or widening of any street or highway, said street or highway shall be taken over as county road or designated as a State trunk line or Federal aid highway, as the case may be, and the consent of the village or city council by resolution so to take over or designate said street or.highway as a county road or State trunk line or Federal aid highway shall be first obtained.” CL 1948, § 213.171 (Stat Ann 1953 Cum Supp § 8.171).
The scope of the 2 sections of article 8 of the Constitution, above quoted, is limited to roads, streets, alleys or public places laid out, established or in esse at the time any attempt to vacate or alter might be made by the legislature through direct or indirect legislative action. Under these sections the legislature could not and has not in the turnpike act authorized the vacating or altering of any road, street, alley or public place by the Turnpike Authority.
Article 8, §§27 and 28 of the Constitution make it mandatory that the Authority obtain the consent of the city or village before changing, widening or altering any established streets or highways other than streets or highways not controlled by the city or village, such as trunk-line highways.
The turnpike act can be and will be construed that it was the legislative intent, as expressed in the act, that the Authority obtain the consent referred to in the preceding paragraph.
The Authority has stated in this record that it has not contemplated changing, widening or altering any established city or village street without the consent of the city or village.
Intervenor-appellant requests that this Court expressly state in its opinion that the consent provisions of PA 1925, No 352, are applicable to section 7 of the turnpike act because “the opinion of the trial court with respect to construction of the foregoing provision of the 1925 act is very brief.” We believe the trial court so held. And this Court holds that the consent provisions of PA 1925, No 352 (CL. 1948, §§ 213.171-213.199 [Stat Ann and Stat Ann 1953 Cum Supp §§ 8.171-8.200]), apply to section 7 of the turnpike act.
This Court finds that sections 4, 5 and 7 of the Michigan turnpike act are not in violation of the' Michigan Constitution (1908), art 8, §§27 and 28.
4. Appellants contend that sections 4 and 13 of' the turnpike act are in violation of the Constitution (1908), art 6, § 22, and art 10, § 18.
Article 6, § 22, of the Constitution, provides, in part:
“The State civil service shall consist of all positions in the State service except those filled by popular election, heads of departments, members of hoards and commissions, employees of courts-of record, of the legislature, of the higher educational institutions recognized by the State Constitution, all persons in the military and naval forces of the State, and not to exceed 2 other exempt posi tions for each elected administrative officer, and ■each department, board and commission.”
Section 4 of the turnpike act reads, in part:
“The authority- is hereby authorized and empowered : * * *
“(1) To employ consulting engineers, superintendents, managers, and such other engineers, construction, accounting, appraisal and financial experts, attorneys and other employees and agents as may be necessary in its judgment, and to fix their compensation.” (CLS 1954, §252.105, Stat Ann 1953 Cum Supp § 9.1095[4].)
It is the contention of appellants that the Authority is an administrative agency of the State government, and, therefore, its employees are in State service and must be governed by article 6, § 22, of the Constitution. It is appellee’s contention that the Authority is an agent of the State, existing separately from it.
As the same question is raised in regard to the status of the Authority involving accounting and auditing, we shall set forth article 10, § 18, of the Constitution (1908), and the applicable portions of sections 4 and 13 of the turnpike act before deciding these 2 questions raised by appellants.
Article 10, § 18, of the Constitution, provides:
“The legislature shall provide by law for the keeping of accounts by all State officials, boards and institutions, and by all county officials; and shall also provide for the supervision and audit thereof by competent State authority and for uniform reports of all public accounts to such authority. Such systems of account shall provide for accurate records of all financial and other transactions and for checks upon all receipts and disbursements of all such officials, boards and institutions; and shall be uniform for all similar boards, institu tions and county officials. All public accounts and tbe audit thereof shall be public records and open to inspection.”
Section 4 of the turnpike act reads, in part r
“The authority is hereby authorized and empowered: * * *
“(g) To fix and revise from time to time and charge and collect tolls for transit over each turnpike project constructed by it;”
And section 13 of the turnpike act reads, in part:
“Such tolls shall not be subject to supervision or regulation by any other commission, board, bureau or agency of the State.” (CLS 1954, § 252.113, Stat Ann 1953 Cum Supp § 9.1095[13].)
The legislature clearly expressed its intention that the Turnpike Authority should not be considered as an alter ego of the State, and that said Authority should be distinguished from the general State departments supported by general taxation. The legislature set up definite purposes, definite methods, whereby costs of construction and operation should be met without imposing a tax load on the people of the State. There is a provision in this act that after the turnpike highway is paid for from revenue collected from those who use the highway, said turnpike highway should be taken over by the State as part of the State highway system.
This Court recently commented upon the relationship existing between an authority and the governmental unit it serves in Rude v. Muskegon County Building Authority, 338 Mich 363. In this case the petitioner sought an injunction to prevent the Authority from acquiring a welfare administration building and claimed that the Authority was the alter ego of the county, and, therefore, was bound by constitutional provisions, such as debt limita lions regarding the raising of money, spending, and pledging the county credit. The circuit court granted the injunction. This Court overruled the lower court, stating (p 366):
“We are satisfied to overrule the finding as. to alter ego. While the authority is in a sense a county-wide municipal corporation, it is limited in its scope of activities even inside of county affairs. The legislature in enacting the statute providing for the creation of an authority evidently intended it to he a separate body from the board of supervisors. The board of supervisors in this case evidently intended the authority to carry on specific activities with which from then on, the board need not necessarily directly concern itself.”
Recent cases outside of Michigan have looked at the source of the authority’s income and the legal status of its obligations, holding that if the full faith and credit of the government is not pledged and if the activities of the authority are not tax supported, the authority is separate from the government and autonomous. State of New Jersey, Department of Civil Service, v. Parking Authority of City of Trenton, 27 NJ Super 284 (99 A2d 177); Guaranty Trust Co. of New York v. West Virginia Turnpike Commission, 109 F Supp 286; Delvering v. Gerhardt, 304 US 405 (58 S Ct 969, 82 L ed 1427).
Exercising its general police powers of the State, the legislature can choose from many different methods to provide for highways. It is the opinion of this Court that sections 4 and 13 of the turnpike act are not in violation of the Michigan Constitution (1908), art 6, §22, and art 10, § 18.
5. Intervenor-appellant also contends that section 19 of the turnpike act is in conflict with article 10, .§ 12, of the Constitution (1908).
Appellant bases this contention on the fact that section 19 of the turnpike act appropriates $500,000 out of the State highway department’s share of the motor vehicle highway fund as a revolving fund for the use of the Authority in planning toll roads. Appellant contends that this is in violation of the Constitution, art 10, § 12, which provides:
“The credit of the State shall not be granted to, nor in aid of any person, association or corporation, public or private.”
A similar question was presented to this Court in State Highway Commissioner v. Detroit City Controller, 331 Mich 337. In that case this Court held that where bonds are payable solely from revenue there is no pledge of State credit. This Court holds that section 19 of the turnpike act (CLS 1954, § 252.-119, Stat Ann 1953 Cum Supp §9.1095 [19]) is not in conflict with article 10, § 12, of the Constitution.
6. Intervenor asks this Court to decide that the turnpike act is in conflict with the State Constitution (1908), art 5, § 21, governing the object and title of laws. The title of the act (PA 1953, No 176) is as follows:
“An act to facilitate vehicular traffic in the State of Michigan by providing for construction, maintenance, repair and operation of turnpike projects, creating the Michigan turnpike authority and defining its powers and duties; providing for financing-such projects by issuance of turnpike revenue bonds of the authority payable solely from tolls and other revenues to pay cost of construction, maintenance, repair and operation of such projects and to pay such bonds and the interest thereon; providing- for appropriations for study of such projects and employment of engineers and others in connection therewith; providing for the taking over of uncompleted limited access highways, payment of bonds and the transfer of unexpended construction funds in connection therewith; and providing for court validation of turnpike revenue bonds.”
It is appellant’s contention that the title contains no reference to the points covered, namely, the attempted release from constitutional requirements of consent by invaded municipalities, civil service, and State auditing and accounting requirements, and, therefore, the title is in violation of the Constitution, article 5, § 21, which provides in part that:
“No law shall embrace more than 1 object, which shall be expressed in its title.”
This Court has repeatedly held that if the title clearly expresses the subject matter and conveys it sufficiently, it need not constitute a complete index of the statute. Krench v. State of Michigan, 277 Mich 168; In re Brewster Street Housing Site, 291 Mich 313; Benson v. State Hospital Commission, 316 Mich 66; Mayor of Port Huron v. City Treasurer of Port Huron, 328 Mich 99.
It is our opinion that there is no merit to appellant’s contention and that the title of the act is sufficient to embrace all matters covered by the specific provisions of the act.
7. Intervenor further contends that the turnpike act is a special act and, therefore, violates the Michigan Constitution (1908), art 5, §30. Section 23 of the turnpike act (CLS 1954, §252.123, Stat Ann 1953 Cum Supp § 9.1095[23]) reads, in part:
“It is the judgment of the legislature that there be an immediate study and survey by the authority of the feasibility of 2 turnpike projects, 1 of which shall start at the Ohio State line near the city of Toledo, running thence northerly through Monroe county paralleling the existing State trunldine highways to Rockwood, thence northerly in Wayne county connecting Trenton, Wyandotte and Ecorse paralleling Fort street, thence northerly and northeasterly to the Detroit loop district: Provided, That an extension may be built, after entering the Wayne county and Detroit metropolitan area, northerly to connect the cities of Pontiac, Flint, Saginaw and Bay City: * * * and the other such turnpike project to connect the Detroit and "Wayne county metropolitan area westerly across the southern section of the State of Michigan to a terminus at the southwestern border of the State of Michigan and the State of Indiana, at such point as will, in the judgment of the authority, provide the best and most logical means of providing modern highway facilities connecting said Detroit and Wayne county metropolitan area to the city of Chicago.”
Article 5, § 30, of the Constitution (1908) provides:
“The Legislature shall pass no local or special act in any case where a general act can be made applicable, and whether a general act can be made applicable shall be a judicial question. No local or special act, excepting acts repealing local or special acts in effect January 1, 1909 and receiving a 2/3 vote of the legislature shall take effect until approved by a majority of the electors voting thereon in the district to be affected.”
Similar language was used in the statute construed in Attorney General, ex rel. Eaves, v. State Bridge Commission, 277 Mich 373, and commenting thereon this Court said (p 378):
“The bridge in question is international in character and will be used by those, from all parts of both nations who desire to enter or leave the United States through Port Huron. Its only so-called local characteristic is that its American approach is at Port Huron. If the act in question were deemed to be local or special in its nature, what limits should have been placed by the legislature upon those who should vote upon the question? Can those who live in' Wayne county and who use the Port Huron gateway be said to be unaffected? Assuming that the-act is to be construed as a local or special act, what district is affected and how shall its limits be determined? Is it the city of Port Huron? Are nearby cities and villages to be excluded? To state the question is to give the answer. So far as the State of Michigan is concerned, practically all of its citizens are affected directly or indirectly by the means of ingress and egress at Port Huron just as they are at the city of Detroit. The geography of Michigan requires all of its citizens to be particularly interested in transportation across, over and under the waters of the State, otherwise they might remain without means of vehicular transportation except to the south and west.
“The scope of the act is not limited to an international bridge and ferries at or near Port Huron although it does embrace such objects.”
By this act the Michigan legislature did not direct the Authority to construct certain turnpike highways, but only asked the Authority to give careful consideration as to the feasibility, and gave to the Authority discretion to construct highways in certain areas only if such project could be successfully financed, and further gave to the Authority the problem of determining as to whether there was an immediate need and necessity for such turnpike highway. It is the opinion of this Court that section 23 of the turnpike act is not in violation of the provisions of article 5, § 30, of the Constitution (1908).
8. Appellants insist that section 2(b) of the turnpike act conflicts with article 8, § 14, of the Michigan Constitution (1908) in that it grants to the Turnpike Authority power to construct bridges over navigable streams without the consent of the county board of supervisors.
Article 8, § 14, of the Constitution provides:
“No navigable stream of this State shall be either bridged or dammed without permission granted by the board of supervisors of the county under the provisions of law, which permission shall be subject to such reasonable compensation and other conditions as may seem best suited to safeguard the rights and interests of the county and the municipalities therein. No such law shall preclude the State from improving the navigation of any such stream, nor prejudice the right of individuals to the free navigation thereof.”
Plaintiff-appellant in its brief states:
“The right of the board of supervisors to withhold permission is perhaps not unlimited, but that question is not before this Court. By sections 2 and 5 of the turnpike act, the Authority is empowered without any limitation to bridge navigable streams. The Authority has made no attempt to obtain such permission, nor have they ever indicated an intention to do so.”
The constitutional provision herein invoked goes back to the 1850 Constitution. In the opinion of this Court the same object is set forth in both the 1850 constitutional provision and the turnpike act, namely, to provide for the people of this State improved and the best of transportation. There is no showing in this record that the Authority contemplates constructing bridges over navigable streams which will interfere with the public’s right of navigation and, therefore, we hold that section 2(b) of the turnpike act (CLS 1954, § 252.102, Stat Ann 1953 Cum Supp §9.1095 [2]) is not in conflict with the Constitution (1908), art 8, § 14.
9. Intervenor-appellant insists that section 7 of the turnpike act, giving the Authority condemnation powers like those of the State highway commissioner, is in conflict with article 13, § 2, of the Michigan Constitution (1908), which reads:
“When private property is taken for the use or benefit of the public, the necessity for using such property and the just compensation to be made therefor, except when to be made by the State, shall be ascertained by a jury of 12 freeholders residing in the vicinity of such property, or by not less than 3 commissioners appointed by a court of record, as shall be prescribed by law: Provided, That the foregoing provision shall not be construed to apply to the action of commissioners of highways or road commissioners in the official discharge of their duties.”
By section 7 it is provided that condemnation proceedings shall be carried forward by the Authority “subject to the provisions of any and all laws applicable to condemnation of property in the name of the State highway commissioner.” Intervenor contends that if the Authority is an agent of the State, existing separately from it, and should not be considered as an alter ego of the State (as discussed in part 4 of this opinion), said Authority should be prohibited from exercising the powers granted to the highway commissioner by article 13, § 2, of the Constitution.
In Fitzsimons & Galvin, Inc., v. Rogers, 243 Mich 649, this provision of the Constitution was urged by plaintiff whose property was being taken for a railroad right-of-way. We there said (pp 661, 662):
“It is true that the railroad act * * * affords a jury trial but it does not follow that the legislature may not provide a proper procedure without trial by jury. The present undertaking is a State project and as such clearly falls within the exception found in the State Constitution as to the right of a jury trial. * * *
“ Tn the absence of a special constitutional or statutory provision there is no right to trial by jury in condemnation proceedings. Due process of law does not require the damages in such proceedings to be assessed by a jury.’ 20 CJ, p 999.
“The highway act under which the commissioner is here proceeding provides for a determination of necessity by a hearing before the State highway commissioner, and for an assessment of damages by 3 court commissioners.”
It is the opinion of this Court that section 7 of the turnpike act (CLS 1954, § 252.107, Stat Ann 1953 Cum Supp §9.1095 [7]), is not in conflict with the provisions of article 13, § 2, of the State Constitution (1908).
10. Intervenor also urges that section 24 of the’ turnpike act, giving the Authority power to make nonreviewable determinations, violates articles 4 and 7 of the Constitution 1908.
Section 24 of the act provides:
“All determinations made by the authority in the exercise of its discretionary powers, including, without limitation with reference to the location and terminal points of any turnpike constructed by it, the materials to be used in its construction and the plans and specifications therefor, the tolls to be charged for the use thereof, the letting of contracts for the construction of turnpikes or the sale of bonds to provide funds for the payment of the cost thereof, except as otherwise herein provided, shall be conclusive and shall not be subject to review by the courts: Provided, That this section shall not deprive the courts of jurisdiction of any violation of this act or from the consideration of any question of interpretation of law.”
Article 4 of the Constitution deals with the subject of division of powers of government, and article 7 establishes the judicial department.
The act here in question clearly says that it was the legislative intent that the Authority be clothed with administrative discretion necessary to carry forward the purposes of the Michigan turnpike act. This Court has aproved the grant of such administrative discretion in Wolgamood v. Village of Con stantine, 302 Mich 384, and in City of North Muskegon v. Bolema Construction Co., 335 Mich 520.
11. Appellants contend that sections 1 and 11 of the turnpike act (CLS 1954, §§ 252.101, 252.111, Stat Ann 1953 Cum Supp §§ 9.1095[1], 9.1095[11]), authorizing the issuance of revenue bonds on a nondebt basis, conflict with the provisions of the State Constitution (1908), art 10, §§10 and 11. Article 10, § 10, provides:
“The State may borrow not to exceed $50,000,000 for the improvement of highways and pledge its credit, and issue bonds therefor on such terms as shall be provided by law.”
Article 10, § 11, provides:
“No * * * evidence of State indebtedness shall be issued, except for such debts as are expressly authorized in this Constitution.”
This question was presented to this Court in Nichols v. State Administrative Board, 338 Mich 617, wherein we held: (1) Revenue bonds for construction of the Mackinac bridge did not constitute an indebtedness of the State within the meaning of the Constitution limiting State indebtedness for improvement of the highways, where the statute providing for the issuance of bonds declared they were payable solely from revenues of the State agency constructing and operating the bridge and source of payment was stated on the face of the bonds as well as the fact that they were not general obligations of the State (Constitution 1908, art 10, § 10; PA 1952, No 214, as amended by PA 1953, No 141 [CLS 1954, § 254.311 et seq., Stat Ann 1953 Cum Supp §9.1361(1)]); and (2) That revenue bonds of a State agency did not become general obligation bonds of the State on the theory that the principal is liable for the acts of its agent, where the authorizing statute and the bonds both stated they were payable solely from revenues and were not general obligations of the State.
The turnpike act provides that the bonds are payable solely from revenue and are not general obligations of the State. Sections 1 and 11 of the act are not in conflict with the State Constitution (1908), art 10, §§10 and 11.
12. Intervenor contends that section 22 of the turnpike act (CLS 1954, § 252.122, Stat Ann 1953 Cum Supp § 9.1095[22]), providing for bond validation is in violation of article 4, § 2, of the Michigan Constitution (1908), and constitutes an infringement by the legislative department upon the prerogatives of the judicial department.
Article 4, § 2, of the Constitution (1908), reads:
“No person belonging to one department shall exercise the powers properly belonging to another, except in the cases provided in this Constitution.”
Section 22 of the act grants to the Authority the right to issue bonds, and provides that the Authority may, if it deems it expedient, have its authority to issue bonds and the legality of all proceedings in connection therewith, determined in the circuit court for Ingham county by filing a petition against the State of Michigan and the taxpayers, property owners and citizens thereof. After the filing of such petition the circuit court issues an order in the form of a notice against the State of Michigan and against the several property owners, taxpayers, citizens, and others having or claiming any right, title or interest in property to be affected by the issuance of the bonds and requiring that all persons of the State, through the attorney general, appear at a time and place designated to show cause why the prayer of the petition should not be granted and the proceedings and bonds validated. This section further provides that the attorney general shall carefully examine the petition and if, in the opinion of the attorney general, the petition is defective, insufficient or untrue, or if the- bonds in question have not been duly authorized, defense shall be made thereto as may seem proper by the attorney general. The section proceeds to provide for notice through publication and an establishment of the rights of any property owners, taxpayers, citizens, or persons to become a party to the proceedings by pleading to said petition. The method of hearing is provided for with the power vested in the judge to proceed to hear and determine all questions of law and fact and to render a final decree with the least possible delay. The section concludes with the right of appeal, within 20 days after the entry of such decree, to the Supreme Court, with the provision that if no appeal is taken within said time the validity of said bonds shall never be called in question in any court.
This section of the turnpike act is not mandatory upon the Authority, as it expressly states that the Authority may take such action in the Ingham circuit court “if it deems it expedient.” It provides a method whereby the circuit court of Ingham county, and in case of appeal the Supreme Court of Michigan, can make a determination in regard to the issuance of said bonds in such a way that the validity of the bonds “shall never be called in question in any court.”
In Washington-Detroit Theatre Co. v. Moore, 249 Mich 673 (68 ALR 105), this Court in a lengthy opinion commented upon the constitutionality of the declaratory judgment law, being PA 1929, No 36 (CL 1948, §691.501 et seq. [Stat Ann §27.501 et seq.]). In this case we held that there is no constitutional restriction on the power of the legislature to recognize the complexities of modern affairs and to provide for the settlement of controversies between citizens without the necessity of one committing an illegal act, or wrong, or threatening to wrong the other, and that there is no constitutional expression of limitation upon the power of the courts to decide such disputes. The Court further commented upon the fact that it has often said that a cause of action arises only upon the breach of a duty and the invasion of a right, but this is merely the announcement of a general rule of practice subject to possible exceptions and to legislative change.
The advisability of such a law is a legislative question and the legislature in providing in section 22 of the turnpike act (CLS 1954, §252.122, Stat Ann 1953 Cum Supp § 9.1095 [22]) for the method by which the Authority, if it deems it expedient, may bring an action in the circuit court of Ingham county to have the question of the validity of .the bonds determined, did not violate the provisions of article 4, § 2, of the Constitution (1908),
13. Intervenor contends that sections 4 and 23 of the turnpike act conflict with the State Constitution (1908), art 5, §1, as being delegations of authority. Section 4 of the act provides:
“The authority is hereby authorized and empowered : * * *
'“(e) To construct, maintain, repair, police and operate turnpike projects as hereinabove defined; and to establish rules and regulations for the use of any such turnpike project; * * *
“(g) To fix and revise from time to time and charge and collect tolls for transit over each turnpike project constructed by it; * * *
“(j) To designate the locations, and establish, limit and control such points of ingress to and egress from each turnpike project as may be necessary or desirable in the judgment of the authority.” (CLS 1954, § 252.104, Stat Ann 1953 Cum Supp § 9.1095 [4].)
Section 23 of the act reads, in part:
“The Michigan turnpike authority may, in its discretion, construct only such portions of said project as may be successfully financed. * * # The Michigan turnpike authority is therefore hereby authorized and directed to take the necessary action to study the feasibility of turnpike projects to serve such purposes, and if, in its judgment, there is immediate need and necessity for the 2 turnpike projects * * * and such turnpike projects can be
successfully financed and constructed to immediately proceed with the financing and construction of such turnpike projects, or any portion thereof.” (CLS 1954, § 252.123, Stat Ann 1953 Cum Supp § 9.1095 [23].)
It is the intervenor’s position that the principles of separation of powers was violated by unlawfully delegating to the Authority the power to decide how, when, where and for how much, toll roads shall be built and users charged therefor.
This Court approved legislative grant of the right of fact-finding powers and discretionary authority in the case of In re Brewster Street Housing Site, 291 Mich 313.
In the case of Milk Marketing Board v. Johnson, 295 Mich 644, this Court dealt with the right of the legislature to give to the board the right to establish and enforce standards of marketing milk, and approved such a grant of power where there were sufficient standards set in the statute for the guidance of the administrative unit.
An examination of the turnpike act discloses that the legislature carefully framed and limited the purpose and procedure to be followed by the Authority, such as annual reports to the governor and the legislature; annual audits; the requirement that rules and regulations of the Authority are to be adopted under the provisions of the' administrative code and the administrative procedure act; and that final acts of the Authority are to be journalized and open to the public.
The complexities of modern life are such that courts of last resort have recognized the necessity of legislative grants of authority to carry forward programs such as provided in this turnpike act.
It is the opinion of this Court that sections 4 and 23 of the turnpike act do not conflict with the provisions of the Constitution (1908), art 5, § 1.
14. Appellants also urge that sections 4, 13 and 17 of the turnpike act (CLS 1954, §§ 252.104, 252.-. 113, 252.117, Stat Ann 1953 Cum Supp §§ 9.1095 [4], 9.1095 [13], 9.1095 [17]), violate the provisions of article 13, §1, of the Michigan Constitution (1908). Article 13, § 1, reads:
“Private property shall not be taken by the public nor by any corporation for public use, without the necessity therefor being first determined and just compensation therefor being first made or secured in such manner as shall be prescribed by law.”
Section 4 of the turnpike act sets forth the powers of the Authority, subdivision (h) giving to the Authority the right “to acquire, hold and dispose of real and personal property in the exercise of its powers and the performance of its dutiesand subdivision (i) the right to acquire by purchase or otherwise, or by the exercise of the power of eminent domain, public lands, parks, playgrounds, highways' or parkways.
Section 13 of the act permits the Authority to .fix, revise, charge and collect tolls for the use of the turnpike project, and also to contract with persons, partnerships, associations or corporations who desire to use a part of said highway for gasoline stations, garages, hotels, restaurants, et cetera, and to fix the terms, conditions, rents and rates of charge for such use. There are definite restrictions in this section in regard to gasoline service stations, such as the necessity that there be a sufficient number established to permit reasonable competition by private business in the public interest, and that no one supplier be granted the right to operate more than 25% of the service stations upon any turnpike highway, or more than one service station within the same service area.
Section 17 gives to counties, cities, villages and townships, and other political subdivisions of the State, the right to lease, lend, grant, or convey to the Authority, at its request, real property which may be necessary or convenient to the effectuation of the authorized purposes of the Authority. This section also provides for the maintenance, repair and policing of the turnpike project.
This is the first case presented to this Court involving the construction of the Michigan turnpike act. Other States have passed upon similar legislation. In 1950 the New Jersey superior court in Mayor, City of Elizabeth, v. New Jersey Turnpike Authority, 7 NJ Super 540 (72 A2d 399), commented upon the power granted to an authority in the taking' of.property, such as is provided in the Michigan turnpike act, and stated (pp 545, 546):
“In the instant case, the legislature of New Jersey has by statute authorized the cpnstr-uction of the turnpike between 2 terminal points through designated counties. The Turnpike Authority is an administrative agency acting for the State and is vested with discretion in the selection of the particular route which the proposed turnpike will traverse. When public agencies are vested with discretionary power, a court of equity will not interfere unless there has been a plain and palpable abuse of discretion. A mere difference of opinion is not sufficient to justify the substitution of the court’s discretion for that of the duly constituted authority vested by the legislature. (Citing cases.)
“The observations of Vice-Chancellor Berry in State Highway Commission v. City of Elizabeth, 102 NJ Eq 221, 228, 229 (140 A 335), affirmed, 103 NJ Eq 376 (143 A 916), are pertinent. He said: ‘The legislature intended to confer complete power and the widest discretion upon the commission, in order that the construction of the State highway system might be facilitated in the greatest degree. Absolute discretionary power in the determination of the course of a State highway route through a city resulting in the taking of city property already devoted to a public use may be a dangerous power in the hands of an arbitrary State agency; but that is a matter for' consideration by the legislature and not by the courts.’ ”
The rights of the Authority under sections 4 and 17 of the act to acquire property for the turnpike project have been commented upon in various sections of this opinion, and this Court finds that sections 4 and 17 are not in violation of article 13, § 1, of the Michigan Constitution (1908).
The right of an authority to enter into a contract or lease with concessionaries was dealt with in the case of Bush Terminal Co. v. City of New York, 282 NY 306 (26 NE2d 269). Action was brought by private owners to restrain the city and the authority from entering into a contract on the ground that the authority ought to have to pay taxes in order to protect private business operators from unfair competition. The court, in passing upon the question, said (p 315):
“Acts performed in carrying out a legislative mandate, as an incident to the exercise of a general power conferred by the legislature, are not ultra vires where they were within the contemplation of the legislature when it granted the general power.”
The act clearly shows that the legislature was conscious of the fact that there would be necessary services which would of necessity have to he rendered to the driving public and which could best be provided by private enterprise.
The legislative grant of power to the Authority to enter into contracts with private individuals or corporations so as to provide for gasoline stations, restaurants, et cetera, constitutes an activity incidental to the discharge of a general power, and would not be ultra vires.
It is the opinion of this Court that section 13 of the turnpike act (CLS 1954, §252.113, Stat Ann 1953 Cum Supp § 9.1095 [13]) is not in violation of the provisions of article 13, § 1, of the Constitution (1908).
15. Appellants also contend that the turnpike act is in conflict with the State Constitution (1908), art 10, § 14, since it authorizes a public corporation to be a party to a work of internal improvement. Article 10, § 14, provides:
“The State shall not be a party to, nor be interested in, any work of internal improvement, nor engage in carrying on any such work, except:
“1. In the development, improvement and control of or aiding in the development,-improvement and control of public roads; * * *
“3. In reforestation, protection and improvement of lands in the State of Michigan;
“4. In the expenditure of grants to the State of land or other property.”
In Jasnowski v. Board of Assessors of the City of Detroit, 191 Mich 287, this Court held that a wagon road is a highway.
In Oakland Drain Commissioner v. City of Royal Oak, 306. Mich 124, 142, this Court stated:
“Furthermore, the establishment and operation of the proposed sewage-disposal system is hereinafter determined to be a self-liquidating project and we have repeatedly held that such a project is not a work of internal improvement and, therefore, not prohibited by the constitutional provision above quoted.”
This Court holds that the turnpike act is not in conflict with article 10, § 14, of the Michigan Constitution (1908).
After careful consideration of all the questions set forth in appellants’ statements of questions involved, this Court concludes and determines that the provisions of the turnpike act (PA 1953, No 176 ) are not contrary to or in violation of the Michigan Constitution (1908).
The decree of the trial court is affirmed. No costs, a public question being involved.
Carr, C. J., and Butzel, Smith, Sharpe, Boyles, Reid, and Dethmers, JJ., concurred.
PA 1953, No 176 (CLS 1954, ,§§ 252.101-252.126, Stat Ann 1953 «Cum Supp §§ 9.1095 [1]-9.1095 [26]).—Reporter.
See CL 1948, and CLS 1954, § 117.1 et seg. (Stat Arm'1949 Rev and Stat Ann 1953 Cum Supp § 5.2071 et seg.).—Reporter.
These acts are CL 1948, §§ 213.21—213.41 (Stat Ann and Stat Ann 1953 Cum Supp §§ 8.11-8.31) and CL 1948, §§ 213.151-213.153 (Stat Ann §§ 8.161-8.163), respectively.—Reporter.'
See CL 1948, § 464.15 (Stat Aim § 22.218) .—Reporter.
CLS 1954, §§ 252.101-252.126, Stat Ann 1953 Cum Supp §§ 9.1095 (1)-9.1095 (26).—Reporter. | [
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Cooley, C. J.
Action of replevin for a quantity of scrap-iron. The plaintiff resides in Grand Bapids, and claims title to the iron through a purchase made from one Snher, on January 6, 1883. It appears incidentally in the ease that defendant, when the property was taken from him on the writ in this case, was holding the property under a writ of attachment against Snher, which was levied January 10, 18S3. The defendant, however, did not justify under the attachment, and he seems not to have pleaded in the case.
The plaintiff had never had possession of the iron, and to show his right to maintain the suit it became necessary for him to prove the purchase from Snher. His evidence was that on January 6, 1883, he had a conversation with Snher in which he agreed with him upon the purchase of a car-load of scrap-iron at Muskegon, to be sent to him by rail, and the freight to be paid by Snher. The price was agreed upon, and seven dollars and a half was paid upon it by plaintiff. Snher had at the time a car partly loaded at Muskegon, and was negotiating’ for the purchase of more from Ryerson, Hills & Co. He finished that negotiation January 9, 1883, ánd on that day completed the loading of the car from the amount purchased, and drew upon the plaintiff in favor of Ryerson, Hills & Co. for $35 in payment. He also put into the car some kerosene barrels which he intended for the plaintiff, but which it does not appear that- the plaintiff had bought, or otherwise acquired a title to. The draft to Ryerson, Hills & Co., plaintiff, by telephone, promised them to accept at the time they took it.
The court charged the jury that if they should find from the evidence that the plaintiff bought the iron of Snher on January 6th, then it belonged to the plaintiff from and after that day.
The evidence did not tend to show a purchase on January 6th. A part of the iron Snher did not own and could not have 'sold on that day; and the negotiation between the plaintiff and Snher did not contemplate the transfer of title to any particular lot of iron then designated, but to a car-load of iron to be afterwards made up. But when the car-load was actually made up on the 9th, and a draft made and delivered to a third party and accepted for the purchase price, or a part of it, the plaintiff became entitled to the iron thus set apart for him; and as this was before the attachment was levied, it is immaterial that it was on a day subsequent to the day mentioned by the judge in his charge.. The error was quite harmless. The property being identified, it was iinma ferial that it liad not yet been received and weighed by the plaintiff, and the quantity agreed upon or ascertained. Adams Mining Co. v. Senter 26 Mich. 73; Lingham v. Eggleston 27 Mich. 324; Hatch v. Fowler 28 Mich. 205; Hahn v. Fredericks 30 Mich. 223; Wilkinson v. Holiday 33 Mich. 386; Grant v. Merchants' etc. Bank 35 Mich. 515; Scotten v. Sutter 37 Mich. 526; Brewer v. Salt Ass’n 47 Mich. 526.
On this writ no question is made concerning the kerosene •barrels, but it is complained that [the jury] gave damages which included some part of the costs which the defendant had been obliged to pay in this suit. The record, however, does not show how the jury made up their award of damages, and it was possible for them, on the evidence, to give what they did without including any improper items.
The judgment must be affirmed.
The other Justices concurred. | [
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Campbell, J.
Lentz replevied from, tbe defendant (being a carrier in possession) two sets of log-wbeels and accompanying apjiaratus, which lie had sent previously from Cadillac to Keed City,-directed to one Wing who had bargained verbally to purchase them. This bargain was made at Cadillac in May, 1883, and its terms were that plaintiff should get ready immediately one set of wheels which were in condition to be tired and ship them, with the chains, which he had to purchase, and to send on the second set as soon as he could. The first set was sent about May 12th and the second June 2, 1883, forwarded by the Grand Rapids & Indiana Railroad to Reed City. The articles were to be paid for as soon as shipped. After arriving at Reed City they remained there, and were never delivered to Wing or called for by him, and he never communicated with Lentz. A clerk of his (who afterwards became his assignee), who testifies that he had charge of his correspondence, says that during Wing’s absence he answered one of Lentz’s letters of advice by promising that a draft should be sent immediately on Wing’s return. He did not identify the particular time very clearly, but as far as he did it seems to have been the second shipment. Lentz denies receiving any letter except one on the second shipment, and no draft or payment was forwarded for either. Lentz says the purport of the letter was merely that the clerk would remind Wing. There was no testimony that this clerk, Dermont, had any authority beyond corresponding, and no pretense of payment in any shape.
On the 3d of July, Wing made a general assignment to Dermont. The only log-wheels which he described specifically were set out as being about his mill premises, and they are put in at a much lower value than those now in suit. Wing was at this time hopelessly insolvent, having debts exceeding $188,000, and.assets less than $1000.
The assignee swears that about the end of July he went to Reed City and into the office of the Grand Rapids & Indiana Railroad, and told them they had two sets of wheels on which he wanted to pay freight, and paid them eight dollars which they said was the amount due, and took a receipt, which was not produced on the trial. This payment was actually only on one of the shipments not identified. He says that he had the wheels delivered to defendant- for ship ment to Wingleton. They were not so forwarded, and Lentz found them on the third of August, replevied them, and paid the freight both for the original shipments and for the return.
On the trial the court below made the case to turn on whether the property had been accepted by Wing, and the jury found it had not. Some stress was laid by defendant’s counsel (who represent the interest of the assignee, the defendant being indifferent) on an affidavit filed by Lentz as a creditor under the assignment. But this was claimed to have been made under the mistaken belief that the property had been appropriated by Wing, and it could not work an estoppel.
We think the charge was quite as favorable to defendant as could be justified. We have discovered no evidence which showed any acceptance at all, and there was never any delivery to. Wing himself, nor any right in him to compel delivery when he made the assignment. The sale was a cash sale, and we do not think there is any testimony which would justify a conclusion that title was to pass before payment. Neither would he have been bound to accept the articles, which he had never seen, without an opportunity to inspect them. Wing never saw them, and never had any personal communication, either with Lentz or with the carrier. He did not own the property when he made the assignment, and Lentz never made any contract with the assignee. Assuming that the case lies outside of the statute of frauds, the assignee was not a bona fide purchaser, and could not claim them if Wing could not. Payment being due at once, the mere acquisition. of possession could not be relied on by Wing, if he had -obtained it, to cut off Lentz’s rights. It is onty in sales on credit that title passes absolutely and for all purposes on delivery without payment. 2 Kent’s Com. 497, and cases.
While we are inclined to think that the sale was such as to be within the statute of frauds, so that there never was any binding contract whatever, yet this is not important on the present record, for it is very clear that without acceptance or payment by Wing, Len tz could not lose his right to resume possession, as against any one but a bona fide purchaser. We need not consider how far such a person could maintain a right in articles not sold on credit and not paid for. Shipman, v. Graves 41 Mich. 675.
The judgment must be affirmed.
The other Justices concurred. | [
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Champlin, J.
The plaintiff brought an action for malicious prosecution against the defendant. In his declaration he alleged that the defendant wrongfully and maliciously caused him to be prosecuted and arrested for the violation of a village ordinance prohibiting peddling without a license in the village; that he was tried before a justice of the peace and convicted, and on appeal to the circuit court he was acquitted and discharged. The declaration contains no averment that his conviction before the justice was procured by any fraud, perjury, or subornation, and he does not show that his case comes within any of the exceptions applicable to cases where a conviction has been had. Hence, by his own showing, there was not a want of probable cause.
The declaration contained three counts. The defendant demurred to the first, and pleaded the general issue to the second and third counts. The plaintiff eptered a voluntary discontinuance upon the second and third counts, and joined in demurrer on the first count. The circuit judge sustained the demurrer and rendered judgment for the defendant.
Counsel for defendant points out the manifest defect in the declaration with reference to the conviction before the justice, but'in addition requests us to pass upon the question of liability independently of this insuperable defect, on account of the important question of liability, on general principles of municipal law, involved in a complaint of this kind. It would be departing from our customary practice to express an opinion upon questions in the record which are not necessary for a final determination of the suit, however desirable it might be for counsel in particular instances to have us do so. As a general rule, a conviction before a magistrate is a bar to a malicious prosecution, and if the party complaining relies on an exception to it, he must allege the facts which create the exception. Cooley on Torts 185. No exception to the operation of the rule is claimed in this case.
The judgment is affirmed.
The other Justices concurred. | [
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Sherwood, J.
Tliis suit is an action of ejectment, brought by the plaintiffs against the defendants to recover lot 10 in block 68 in the plat of Lower Saginaw, in Bay City. The plaintiffs claim under a tax deed made under a sale of the premises by the Auditor General for the unpaid taxes of 1877 and 1878. At the time the taxes were assessed and this suit was commenced, the defendant Paine lived in Saginaw and claimed to own the lot in question. She was leasing the land to other persons and had paid taxes on the property as liers. The other defendants were in the actual occupation of the property when the suit was commenced,— defendants Pendleton and Stewart as lessees of Mrs. Paine, and the Mungers as sub-lessees of Pendleton and Stewart. On the trial, no proper title was shown in defendants or either of them. The defendants claimed that the tax title of plaintiff was irregular and void, and relied upon their possession to defeat the plaintiffs’ action.
The' question whether a party is in possession of land is one of fact, to be found by the jury under proper instructions from the court; and they have found upon this point in favor of defendants. We find nothing in the instructions of the court upon that subject to correct. The finding is eoncl sive.
The defendants being thus in the actual possession of the land, the plaintiffs can only prevail against such possession by valid deed, and the remaining question relates entirely to the validity of the plaintiffs’ tax deeds. Is it valid?
In the investigation of this subject, upon the trial, it became necessary to show what action was taken by the common council of Bay City in reference to posting notices of the meeting of the board of review in 1877 and 1878, and for this purpose witness Cooley was called and it was shown that he had examined the proceedings of the board, and that they showed no action upon the subject. This was objected to as incompetent, and the objection was properly overruled. If such action was taken it could appear nowhere else ; and if it was not, that fact could only be shown by an inspection of the books. Their official character was. proved and, so far as the record shows, Mr. Cooley was as competent to make that inspection as any other person. It was not necessary to produce the books before the court for that purpose.
It is further insisted that the defendants, in order to be permitted to make their alleged defense, must not only have the actual possession and occupancy of the premises, but they must so possess under some chain of title extending back to the source. This Court, however, has held differently. Gamble v. Horr 40 Mich. 564. It was only necessary for the defendants to show at common law actual possession under a claim of title, to enable defendants to make their defense. Buller’s N. P. 103; Adams Eq. 281; Day v. Alverson 9 Wend. 223; Hall v. Kellogg 16 Mich. 139. And this Court has held that a prima facie'case at the common law is sufficient to enable the defendants to make their defense. Gamble v. Horr 40 Mich. 561. We find no reason for changing the ruling heretofore made on that subject.
It is evident from this record that the chairman of the board of supervisors of Bay county, in the year named, did not fill out and attach the pro¡3er certificates of equalization to the State and county tax-rolls, as required by statute. See Comp. L. § 995 ; ííow. St. § 1029. The equalization by the board is important and necessary, and the action of the board in making it must be duly recorded. Yelverton v. Steele 36 Mich. 62. It is by such record only that its action can be made to appear. The certificate which furnished the evidence of the fact that the law has been complied with, to the tax-payer, is given in the statute and must be strictly complied with. The failure so to do will render the proceedings, to sale void. The departure in this case is apparent and beyond remedy. It applies to the taxes of both years, and the deeds issued upon the sales made for the taxes of those years are null and void.
This is not a proceeding in equity for the purpose of enjoining the collection of a tax alleged to be illegal, as in Burt v. Wadsworth 39 Mich. 126; but if it were I should be inclined to agree with Chief Justice Campbell’s views given in that case. It is a suit to deprive the party of the title to her property against her will, for a mere nominal sum, under the color of legal authority. This can never be done in such a case without a full compliance with all the substantial requirements of the law.
The conclusion we have reached, on this point renders it quite unnecessary to consider the other questions raised and argued on the hearing.
The judgment at the circuit must be affirmed.
Campbell and Champlin, JJ. concurred. Cooley, C. J. did not sit in this case. | [
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Smith, J.
This is an ejectment action. Plaintiffs-Johnson seek to establish ownership to a parcel of' land located in lot 1, section 28, town 15 north, range 8 west, Mecosta county.
Plaintiffs claim title by virtue of a conveyance on October 13, 1948, from Adam Ed Friedel, who was the last record title holder. Defendants Schraw claim title by a conveyance dated May 31,1944, from the Lidells and Lundbergs, their immediate grantors. Defendants ' Squires are land contract purchasers from defendants Schraw. It is conceded that there-is no dispute as to the record title of either of the- parties and that plaintiffs’ and defendants’ title steins from the common grantor, Adam Ed Friedel.
Defendants, in their answer, claim that the property in dispute had been possessed and occupied by them and their predecessors in title for some 40 years. The cause came on for trial on May 24, 1954, and was heard by the court without a jury. At the conclusion of the testimony and proofs the court was of the opinion that plaintiffs could not recover and rendered a judgment of no cause of action in favor of the defendants. Plaintiffs, on August 26, 1954, filed a motion for a new trial on the ground that the verdict was contrary to law and the great weight of the evidence; that the court erred in holding that acquiescence in the present boundary line had been established, erred in admitting certain testimony as to what plaintiffs expected by the purchase of the property, and erred in the court’s examination and cross-examination of the witness. Upon stipulation of counsel, plaintiffs’ motion for a new trial was submitted upon the pleadings.
On September 14, 1955, the trial judge filed an opinion denying plaintiffs’ motion for'a new trial, in which it is stated:
“One factor in the controversy arises as to correct location of the section line between sections 21 and 28 in Martiny township, Mecosta county, Michigan. It was the decision of this Court, after hearing all of the proofs, that the defendants were in possession at the time the plaintiffs claimed to have acquired title; that their possession was obvious to the plaintiffs; that the plaintiffs admitted upon the stand that they did not know where the boundary line was but that they did not expect or think they were acquiring title to some of the land which they now •claim on which a cottage had been previously erected and was there located at the time of their purchase. It was further obvious to the court that their claim is based upon a survey made since they acquired title, which, if correct, establishes boundaries other than those which' they must have recognized at the time they made their purchase and of land them occupied by the defendants.
• “The decision of the court .is predicated upon a finding as to the law that the plaintiffs cannot claim title through the making of a survey which would establish a boundary line not previously agreed upon between the parties and in conflict therewith.
“There is no merit to the claim made that the court erred in a cross-examination of one of the plaintiffs.
“This case was heard before the court without a jury. It became the duty of the court to decide both the facts and the law. In so doing, it was within the province and the duty of the court to try to obtain the truth. The plaintiff cannot complain 'because-the answers made by him to the questions propounded by the court were detrimental to his own interests and in conflict with the claims made as the basis of his lawsuit.”
The plaintiffs have taken a general appeal from the judgment of no' cause of action entered' June 5, 1954, and urge that the trial court erred in holding-that: 1) defendants had established boundary lines by acquiescence, 2) in allowing testimony by witnesses as to where they regarded and supposed the section would be located.
Although the controversy, basically, involves the location of a lost section corner as established by the United States government survey, and a section line drawn in relation thereto, we are not called upon to fix their geographical locations. Our problem is-whether or not a boundary was established by acquiescence. Plaintiffs say not, contending “that in order to find acquiescence there must be' evidence-of a .dispute followed by argument of the interested parties upon a line or boundary and continued acquiescence or acceptance thereafter,” and that “the- mere- fact that nothing happened over the line for a period of years does not constitute acquiescence.”
In so contending, plaintiffs urge upon us that Warner v. Noble, 286 Mich 654, is controlling. We -do not so regard it. In the Warner Case, plaintiff claimed title to a triangular piece of land (which was part of defendant’s lot) by adverse possession. The plaintiff had mistakenly built his house on part of -defendant’s land as disclosed by a later survey. The Court held that á decree for the plaintiff on the basis of title acquired by adverse possession was "unwarranted, but. was careful to note that (p 661):
“There was no mutual agreement between the parties that this was the line. There was no concession by one to -the other that the disputed strip belonged to one party or the other. Bach of the owners claimed to the true line.”
In the ease at bar an unlike situation obtains. The basic source of the difficulty respecting the boundary lines here arises from the fact that the marker jfor the section line is in the middle of the bay of Horsehead lake, having been put down through fhe ice in the lake. A question had arisen in 1919 “relative to the section line.” We need not characterize the question as having reached the stage of á dispute. But it seems' clear that doubts concerning boundaries had arisen and that interested parties were desirous of a resolution-'thereof. “The freeholders back in 1919 wanted those questions settled once and for all,” testified one witness. The survey was made and “I didn’t hear any more about those lines until 6 years ago.” Plaintiffs urge that this testimony does not establish the survey as covering the line in question; there is no doubt that it lacks clarity in certain areas, but its weight, as well as that of the testimony concerning acquiescence in tacit agreement that a row of trees marked a boundary line, was for the trial judge sitting, as he was, without a jury.
We had occasion, in the case of Renwick v. Noggle, 247 Mich 150, to examine the doctrine of acquiescence in the establishment of boundary lines and we there held (p 152):
“The rules for establishment of a boundary line by acquiescence are summarized by Mr. Justice Fellows in Hanlon v. Ten Hove, 235 Mich 227, 231, 232 (46 ALR 788) :
“ While acquiescence alone is not a defense, if acquiescence follows the resolving of a doubt as to where the line is or the settlement of a bona fide controversy, which settlement agreement contemplates an agreed line, and the monuments of such line are fixed and maintained thereafter, such line so established and acquiesced in is the line, and the acquiescence need not continue for the statutory period; likewise where the line is acquiesced in for the statutory period it is also fixed.’
“In that case it was held that the acquiescence of predecessors in title can be tacked on that of the parties, and if the whole period of acquiescence exceeds 15 years, the line becomes fixed, regardless of whether there had been a bona fide controversy as to the boundary.”
See, also, Dubois v. Karazin, 315 Mich 598.
In Gregory v. Thorrez, 277 Mich 197, 201, 202, also, the Court quoted with approval the following-from Dupont v. Starring, 42 Mich 492, 494:
“‘It has been repeatedly held by this Court that a boundary line long treated and acquiesced in as the true line, ought not to be disturbed on new surveys. Smith v. Hamilton, 20 Mich 433, 438 (4 Am Rep 398); Joyce v. Williams, 26 Mich 332. Fifteen years’ recognition and acquiescence are ample for this purpose (Stewart v. Carleton, 31 Mich 270); and in view of the great difficulties which often attend the effort to ascertain where the original monu ments were planted, the peace of the community requires that all attempts to disturb lines with which the parties concerned have long been satisfied should: not be encouraged. Diehl v. Zanger, 39 Mich 601.’ ”
Without further summarizing the testimony, it .seems undisputed that the predecessors in title of. the plaintiffs and defendants recognized and acquiesced in the existing boundary line. The trial court so found and correctly so. We cannot say upon •examination of this record that the evidence clearlyi preponderates in the opposite direction. There is sufficient and competent evidence from which the trial court sitting as a jury could find acquiescence.
Affirmed. Costs to appellees.
Dethmers, C. J., and Sharpe, Reid, Boyles,' Kelly, and Carr, JJ., concurred..
Black, J., took no part in the decision of this case. | [
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Smith, J.
This is an action at law for a broker’s
commission. The controversy arose in this way: On July 13, 1950, Irma S. Constantine and her husband, Peter Constantine, entered into a written agreement with plaintiff’s decedent. In it they granted plaintiff’s decedent, or his assigns, an option to purchase certain real estate located in the city of Detroit. The agreement, written upon a Detroit real-estate board “Option Form,” provided for the purchase of the described property for the sum of $125,000, upon condition that there be an acceptance of the option in writing on or before the expiration date, accompanied by a $2,000 deposit on the purchase price. It was provided, also, that the sale be consummated within 90 days (after delivery of an abstract) by a payment of $25,000 down, the balance to be paid according to the terms of a described land contract. At the foot of the agreement appeared an additional paragraph entitled “Commission Agreement,” separately signed by the defendant and her husband, which stated:
“I understand that you are acting for an undisclosed principal in taking the above option and in the event the above option is exercised by your assignee and the sale consummated thereunder, I will, upon consummation of sale pay to you a commission of 3% or $3,750 which is the amount established by the Detroit real-estate board scale of commissions.”
On October 6, 1950 (after several extensions) plaintiff’s decedent assigned his rights under the option agreement to the Kendrick Realty Company. On the same day the assignee gave notice to the defendant and her husband of its acceptance of the option and tendered therewith a certified check in the sum of $2,000, in accordance with the terms of the option. The defendant and her husband refused to perform the agreement and on October 13, 1950, plaintiff’s decedent and Charles L. Kendrick, doing-business as Kendrick Bealty Company, as plaintiffs, filed a bill of complaint in the "Wayne county circuit court praying for specific performance of the agreement. Defendant Constantine and her husband filed a cross bill, alleging fraud and conspiracy upon the part of the plaintiffs, prayed that the agreement be “cancelled and held for naught,” and in a supplemental answer to plaintiff’s bill of complaint alleged :
“That the so-called option agreement, exhibit ‘A’ is not in fact, an option; that it is the claim of the defendants that it was a contract listing the said property with a real-estate broker for sale, containing an option provision for the purpose of facilitating a sale as an incident thereto.”
When the suit came on for hearing before Judge Alton H. Noe, sitting in Wayne circuit court, it was stipulated upon the record that Thomas L. Clements, administrator of the estate of Thomas W. Clements, deceased, be substituted in place of the deceased plaintiff, who had died on November 23, 1952, and “that Peter Constantine died December 3, 1950, * * * and he has no interest in the property involved in this lawsuit by virtue either of prior assignments by himself to his wife, or by virtue of survivorship of Mrs. Constantine of property owned as tenants by the entirety.” At the conclusion of the hearing the trial judge was of the opinion that decision was controlled by the case of Greenough v. Willcox, 238 Mich 52, holding that the option agreement in question was not an option to purchase, but actually a listing agreement. A decree dismissing plaintiffs’ bill of complaint was entered, from which the plaintiffs appealed to this Court. The appeal was subsequently dismissed upon stipulation of the- respective parties, after the record on appeal was filed with this Court.
We come now to the case before us. On January-28, 1955, the plaintiff filed an action at law in assumpsit for the commission due his decedent under the terms of the option agreement. Defendant in her answer admitted the execution of the agreement, that plaintiff’s decedent had obtained a purchaser, ready, willing and able to purchase, and, further, that she and her deceased husband had refused to perform. As a bar to recovery in this action, however, defendant pleaded the defense of res judicata, and, by amendment to answer, that plaintiff had split his cause of action. The action came on for trial without a jury on April 11, 1955, at which it was stipulated that the record on appeal in the prior chancery suit between the parties be admitted in evidence, together with the originals of plaintiff’s exhibits in the instant case (option form, extensions, option assignment, notice of acceptance), and, finally, that the matter be submitted to the court on the questions of law involved. Legal arguments of counsel were heard the following day. On April 25, 1955, the court filed its opinion and rendered judgment for plaintiff in the sum of $3,750, plus interest and costs. Motions for new trial and stay of proceedings were filed by defendant on May 3, 1955. The motion for new trial was subsequently denied and the stay of proceedings granted pending an appeal to this Court. Defendant has taken a general appeal from the adverse judgment entered below.
It has long been established that a plaintiff cannot litigate his case piecemeal. “If the cause of action is single, it cannot be split and made the subject of several suits,” Tuttle v. Everhot Heater Co., 264 Mich 60, 63. Should there have been a splitting, the first case having gone to judgment, the plaintiff’s cause of action is merged in it if he wins and barred by it if he loses. The first action becomes res judicata as to the second.
The statement is deceptively simple. Bnt the difficulty with applying the rule that a litigant cannot split a cause of action arises from the fact that courts cannot agree upon what is meant by “splitting” and what is meant by “a cause of action.” As Schopflocher puts it in his study, “What is a Single Cause of Action for the Purpose of the Doctrine of Bes Judicata,” 21 Oregon LB 319:
“One of the great difficulties in determining ‘what is a cause of action’ for the purpose of the doctrine of res judicata is the vague and indefinite character of the term ‘cause of. action’ as used by the courts.”
The point is well taken but it should not be overlooked, also, that under our statute the term “cause of action” has many meanings and many faces. It partakes of both procedure and substance (See Michigan Court Rule No 21 [1945]; Federal Buies of Civil Procedure, Buie No 8). It is a point of departure with respect to limitations of action, and we find it used as well with respect to such dissimilar concepts as venue and joinder. Thus it is a forbidding, if not impossible, task to define what is meant by “splitting a cause of action.” Many of the difficulties in this field have, in fact, arisen from the definition process and the attempts to fit the facts to the Procrustean bed of definition. It would seem more fruitful to ascertain the policies behind the rule forbidding the splitting of a “cause of action,” as the term is used with respect to repeated litigation, following which we may proceed to determine whether or not these policies were offended "by what was sought to be done in the case awaiting our decision.
From early times there has been a principle, variously- enunciated,- that one -suit, which-has given the complaining citizen a reasonable chance to have a fair decision on the validity of his complaint, should be sufficient. Not only has the defendant a right to be spared vexatious litigation, Dutton v. Shaw, 35 Mich 431, but the State itself has an interest in the finality of litigation. Interest reipublicae ut sit finis litmm. 2 Freeman on Judgments (5th ed, 1925), § 626, Public Policy Basis of Doctrine, p 1318; Millar, The Historical Relation of Estoppel by Record to Res Judicata, 35 Illinois LR 41.
Had this principle not a competitor we would have been spared much perplexity. But it has. Behind all of this is a human being, the alleged victim of someone’s wrong, asserting with insistence, that a part of his claim (or a part of the same transaction) has not been heard. He reminds us that, in the words of the New York court of appeals (Clark v. Kirby, 243 NY 295 [153 NE 79]) that:
“All procedure is merely a methodical means whereby the court reaches out to restore rights and remedy wrongs; it must never become more important than the purpose it seeks to accomplish.” (Syllabus.)
Thus our problem: Shall we put an end to the litigation or shall we put an end to his right to relief? This decision is no “push over.” So it is that we find the harsh fabric of the rule embroidered with exceptions. (It was Cleary, in his Res Jucli■cata Re-Examined, 57 Yale LJ 339, 349, who commented, with an impressive array of cases in support, that the “courts themselves have not been happy over results often apparently required by res judicata.”)
Against this background, and with these competing considerations, let us again approach our problem. In shortest form it is this: Our plaintiff (in the first action) thought he had an option for the purchase of the property. But when his bill of specific performance was tried the court held that his instrument was not an option to buy, but a broker’s agreement. He was an agent, not a buyer. His next action was logic itself. He said (in his second action, the one before us), since I have an agency agreement, and I produced a purchaser ready, able, and willing to buy (this is not disputed), I want my commission. The trial court held for him, being of the opinion that there had been no splitting of his cause of action, that the suit was not res judicata and that the plaintiff had merely erred in his choice of remedy.
The result reached by the trial court was correct. There has been no adjudication of plaintiff’s right to a commission, only of his right to purchase the property. Defendant has not been subject to vexatious litigation as that term is here employed. All litigation is presumably vexatious but that does not mean that a defendant has a right to be sued only once with respect to all of the alleged wrongs which may arise out of a given business transaction. Tbe State’s interest in the finality of litigation is not offended. The litigation over the claimed commission is to be heard for the first time. Thus the principles opposing the suit (supporting the claim of splitting, of res judicata) have no application.
Having examined the rule and the policies behind it, which, we have determined, have not been offended, we will return to the traditional language of the cases and state that the former action was not a bar to this action because the causes of action in the 2 suits were not the same. As we pointed out in LeRoy v. Collins, 165 Mich 380, 381:
“The first essential of the rule of res judicata is the identity of the matter in issue. The ‘matter in issue’ is defined to be ‘that matter upon which the plaintiff proceeds by Ms action, and wbicb the defendant controverts by his pleadings.’ See Chand, Res Judicata, p 35. If the same subject matter comes in question in a second action in a court of last resort, it is bound by its own former decision. Bigelow on Estoppel (1st ed), p 16.
“ ‘A matter or question, either of law or fact, is res judicata, or set at rest, as to adverse parties and their respective privies, if it was a material issue in the proceeding, directly involved, and not merely incidentally cognizable nor collaterally in question, and was adjudicated after a contest, by a final judgment on the merits.’ 1 Van Fleet, Res Judicata, p 2.”
What was in issue in the former action? Whether or not the complainants had a right to purchase the land. The claim was of right of ownership, not right to commissions. The second action is based upon a contract to pay a commission and the plaintiff’s right to that commission under the contract. The one claimed title. The other denied it. The same evidence would not support the 2 actions. There were, in fact, 2 causes of action, successively asserted.
In the interest of clarity we should point out that same result has often been reached upon the theory of election of remedies, it being held that resort to a remedy which does not exist is not an election in any true sense. Missildine v. Miller, 231 Iowa 371 (1 NW2d 110). As is said in 1 CJS, Actions, § 102, pp 1310, 1311:
“The rule (against splitting) does not prevent plaintiff from suing for part of a single cause of action; it applies only where the claims or demands are divided and made the basis of several actions; and if he does sue for a part, it merely precludes him from thereafter maintaining another action for the other portion. Nor does the rule prevent a second action on a new theory where in the first action plaintiff adopted the wrong remedy.”
It is the latter sentence that holds significance for ns, and it is familiar learning. Thus, when a plaintiff misconceives his remedy before the chancellor and is remitted to the law side of the court because he there has an adequate remedy, he is not properly vulnerable to the charge that he has “split his cause of action.” He sought not to make 2 actions grow in the soil of 1, to take “2 bites from the cherry.” He has merely misconceived his remedy.
The principle finds wide application. Thus it was held by the New York court of appeals that a plaintiff who mistakenly thought he had a partnership agreement, and unsuccessfully sought dissolution and accounting, was not thereafter precluded from suing for his labor and services, the court saying, in part:
“When a suit fails in consequence of a want of jurisdiction, or because the plaintiff misconceived the remedy, or did not bring the proper parties before the court, and not from any inherent defect, the substance of the cause is left at large, and may be made the subject of another action.” Marsh v. Masterton, 101 NY 401, 407 (5 NE 59).
The language of the court in Harding v. Hale, 2 Gray (68 Mass) 399, also is applicable to the situation before us:
“The judgment in the first did not negative the cause of action relied upon in the second, but affirmed its existence and pointed the way to a better writ.”
See, also, Stothard v. Shanley, 166 Minn 134 (207 NW 198), a case having some similarity to that before us, wherein it was held that (syllabus):
“An adverse judgment in an action in which a party sought to enforce a parol contract to convey a parcel of land in payment for services rendered, does not bar him from maintaining an action to recover for the services.”
It follows that there has been no splitting of the cause of action and that the defense of res judicata is not applicable to the case before us. It is not necessary to decision that we discuss the other points made by counsel.
The judgment of the lower court is affirmed. Costs to appellee.
Butzel, Sharpe, Reid, and Kelly, JJ., concurred with Smith, J.
Carr, C. J., and Boyles and Dethmers, JJ., concurred in the result. | [
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Kelly, J.
In the fall of 1953, George Stuart, Inc. (hereinafter referred to as debtor), entered into a contract to pave certain streets for Rodney M. Lockwood. Debtor obtained material for this job from the Boomer Company (hereinafter referred to as appellant). When work ceased, because of cold weather, debtor owed appellant over $4,700 for building materials, and in February, 1954, appellant brought suit in Wayne county circuit court against debtor.
In April, 1954, debtor assigned to appellant $2,700 of sums due debtor from Rodney M. Lockwood, and also 10% of future amounts to become due from Lockwood. The assignment also provided:
“That only as and to the extent that moneys hereby assigned are paid to the Boomer Company shall the indebtedness of George Stuart, Inc., to the said the Boomer Company be paid and extinguished.”
Because of this assignment appellant agreed to take no further action in court before August 15, 1954.
On July 6, 1954, Benjamin J. Safir was appointed temporary receiver of debtor and on August 17,1954, appellant filed notice of the aforementioned assignment with the Wayne county register of deeds.
The Lockwood paving job was finished by other contractors and it was determined that $2,291.71 was due debtor for work completed. Lockwood delivered to appellant a check'for that amount, making such check payable jointly to appellant and George Stuart, Incorporated. Appellee-receiver refused to indorse the check and appellant petitioned the court to require him to do so; appellee filed a cross petition to require appellant’s indorsement on said check to appellee.
This is an appeal from the order denying appellant’s petition and granting the cross petition of appellee, the court basing its order upon appellant’s failure to comply with PA 1945, No 309, the assignment of accounts receivable act. The applicable portion of the act reads:
“Sec. 2. * * * Provided, however, That in the event an assignment of an account receivable is made as security for an antecedent indebtedness other than pursuant to a written agreement by the assignor to do so made at or prior to the time when such indebtedness, or any part thereof, was first incurred, such assignment shall not be deemed to be so perfected unless at the time of the delivery thereof a notice of assignment is on file as provided in section 3 of this act, or if not then on file, until such a notice •of assignment is so filed.” CL 1948, § 691.902 (Stat Ann 1953 Cum Supp § 19.842).
Appellant concedes that the assignment was in consideration of an antecedent debt but contends that the assignment is absolute and, therefore, no notice was required by the aforementioned act.
We cannot agree with appellant’s contention. The assignment clearly stated that only to the extent the moneys assigned were paid would the indebtedness "be considered paid or extinguished. If debtor had paid the amount he owed to appellant with assets other than the assigned account, appellant would have no right to claim any payment under this assignment. The assignment did not bar appellant from satisfying its claim out of other assets of the debtor.
Judgment affirmed.
Carr, C. J., and Butzel, Smith, Sharpe, Boyles, Beid, and Dethmers, JJ., concurred. | [
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Boyles, J.
Plaintiffs filed the bill of complaint in this case in the circuit court for Muskegon county in chancery, asking for a decree that a certain zoning ordinance of the defendant city of Muskegon be declared unconstitutional and void insofar as it attempts to classify certain property of the plaintiffs as residential, and for an injunction to restrain the defendant city and its officials from prosecuting an action, presently pending in the municipal court for the city charging plaintiffs with violation of said ordinance. The trial judge, after receiving exhibits and hearing testimony, entered a decree dismissing the bill of complaint. Plaintiffs appeal.
We hear the case de novo, based on the record. In determining the reasonableness of a zoning ordinance, each case must be determined on its own facts. The ordinance must be reasonable and its reasonableness becomes the test of its legality. Moreland v. Armstrong, 297 Mich 32.
The following plat shows the situation:
Laketon avenue in Muskegon is a main-traveled street running approximately east and west. It is intersected by Terrace street running approximately north and south, and the property here in question is located in the block lying southeast of the inter section. Property on the north side of this block, fronting on Laketon avenne, is zoned commercial and used for commercial purposes. On that row, the commercial buildings, for 2 blocks east and west and about 130 feet in depth south from Laketon avenue, include a building owned by the plaintiffs, known as Diamond T trucks, used by them for sales, storage and servicing of their trucks and equipment, and also another building owned by plaintiffs for warehouse and office purposes. ’ South of and at the rear of said row of commercial buildings is an alley running easterly from Terrace street. The property here in question, owned and used by plaintiffs in their business and designated in the record as parcels A and D, is immediately adjacent to and along said alley for several hundred feet. The only public street outlet for this' property is west at Terrace street. Otherwise, the outlet to this property is on the above-mentioned east and west alley which plaintiffs’ parcel A adjoins on the south', and another alley running north and south alongside of and adjacent to the easterly part of plaintiffs’ parcel D, consisting of an oblong piece of land used for parking and storing of plaintiffs’ trucks and equipment. Its only outlet is by the 2 dirt alleys above referred to.
Plaintiffs have been in the storage, hauling and long-distance moving business for upwards of 20 years and use all of said property for their vehicles and moving equipment. They first acquired record title of the property on Laketon avenue which'they have been using in said business in 1940, having previously held it under contract to purchase. At that time it was vacant property. They constructed 2 units on this property on Laketon avenue, in about 1934 and 1938. The Diamond T garage lot was acquired in 1949. Parcels A and D were acquired in 1952, unimproved.
The defendant city adopted the zoning ordinance here in question, effective January 20, 1953. It expressly repeals an earlier ordinance adopted in 1925 which was referred to and apparently relied upon to some extent by the defendant city in this case. However, it has no force now. The new ordinance zones plaintiffs’ parcels A and D as residential, thus depriving plaintiffs of their use in their business. After plaintiffs had unsuccessfully attempted to have the city rescind said action, and after a prosecution had been started against plaintiffs in municipal court for violation of the ordinance, the instant bill of complaint was filed by plaintiffs attacking the validity of said ordinance as applied to plaintiffs’ parcels A and D.
The only question here for determination is whether, as claimed by plaintiffs-appellants, said ordinance is unreasonable, arbitrary and void as applied to 'said parcels A and D. Does said ordinance, as applied to said parcels, have a reasonable relation to public safety, health and general welfare? The 2 parcels in question are vacant, unimproved property, adjacent to dirt alleys. Their use is essential to the plaintiffs for storing and parking of vehicles and.equipment in their business of storage, hauling and long-distance moving. Parcel D is virtually landlocked insofar as it may be used for residential purposes. Parcels A and D lie behind and at the rear of a row of buildings fronting on Laketon avenue zoned commercial and used for commercial purposes.
Plaintiffs’ witnesses showed that the best and most profitable use to which parcels A and D could be devoted would be for business or commercial purposes, that neither one had any substantial value for residential purposes; and that it would be financially unsound to develop them for residences. There was testimony that their best use would be for parking and storage of vehicles, and that the value of their use for those purposes would be several times their value for residential purposes. There was testimony that there was only a remote possibility of finding purchasers for said property for residential purposes, except to be used as vehicle-parking places, or for garden, or play yard. It was shown that plaintiffs’ business had been growing rapidly and that they had no opportunity to expand their business, to overcome the effect if these parcels were taken from their use. It is a fair inference, from the testimony, that said property would be unsuitable and almost worthless for residential purposes.
The record here shows a situation quite like that brought to this Court in Ervin Acceptance Co. v. City of Ann Arbor, 322 Mich 404, wherein this Court • held that the ordinance there in question, as applied to the plaintiff’s property, was unreasonable, confiscatory and, therefore, illegal.. The same ruling should apply here.
Under recent decisions of this Court, we hold thai the ordinance here in question, as applied to plaintiffs’ parcels A and D, does not advance the public health, safety and general welfare of the people. See Senefsky v. City of Huntington Woods, 307 Mich 728; Fenner v. City of Mushegon, 331 Mich 732; Bedford Moving & Storage Co. v. City of Detroit, 336 Mich 702.
Reversed. Decree for plaintiffs may be entered in accordance with this opinion, with costs to appellants.
Carr, C. J., and Butzel, Smith, Sharpe, Reid, Dethmers, and Kelly, JJ., concurred. | [
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Black, J.
Plaintiffs’ bill, filed in the Wayne circuit August 29, 1955, was dismissed on motion of defendants by the Honorable Arthur Webster, circuit judge, presiding. The decree of dismissal is dated September 13,1955.
Plaintiffs’ claim of appeal was filed September 26th. The cause was regularly placed on the January term docket here, pursuant to Court Rule No 70 (1945), by appellees’ note of argument served November 23d. The printed record was filed December 7th. The entry fee and record-printing bill were voluntarily paid by appellees with no claim of understanding that they would be reimbursed on' account thereof. Appellees’ brief was filed December 28th.
No brief for appellants having been filed, appellees’ counsel moved to dismiss the appeal under Rule No 69, §2 (1945). The motion was made in open court when the ease was called for argument January 10th. All counsel were present. They were advised by the court that the motion would be taken under advisement.
Appellants’ counsel has since moved for further time to file brief, assigning following reasons:
“1. Your deponent left the State immediately after approving the proof sheets of the printed record, together with the appellants’ brief which had been prepared and readied for printing at the same time.
“2. That in your deponent’s absence, a personnel change was affected in the office and the brief together with instructions for its printing was misplaced or lost.
“3. That for personal reasons deponent did not contact his office or home until January 6,1956, when he was informed this matter had been placed on the docket for January 10, 1956, and a review of the file revealed the lack of a brief.”
The motion for further time is not appealing on face thereof and it is denied with suggestion that counsel read Mr. Justice Jackson’s opinion in Knickerbocker Printing Corp. v. United States, 75 S Ct 212, 99 L ed 1292.
Counsel must be advised that our rules mean something. The purpose of the 24-hour requirement of Rule No 69 is to enable intelligent preparation by court and counsel for thorough grasp and consideration of forthcoming oral argument, and to aid the Court in contemplative conference upon the case immediately thereafter. The aim of the rule cannot be accomplished if the brief of one party, whether he be appellant or appellee, is not available.
The situation is no different when a calendar cause is received on briefs, following call thereof during term. An apieellate court approaching conference upon a case briefed for 1 side only must either continue its conference pending receipt of brief or dig out, as best it can from printed record, slugabed contentions. The late brief thus hampers judicial work that is done best when it is done on time, and it is the duty of this Court to lead the way toward final elimination of such practice.
This counsel, by his own affidavit, had notice January 6th of a situation that was bound to affect orderly progress of an appeal he had taken to this Court. He knew, absent immediate motion for continuance under Rule No 70, § 4, that the appeal would become subject to dismissal by the Court (Rule No 69, § 4). Yet no motion or brief was filed until after the ease was called and appellees’ motion to dismiss was accepted for consideration.
Courts should always favor diligence over negligence. All parties litigant, whether plaintiff or defendant, are entitled to prompt justice. The present parties received it below and, foregoing premises considered, should receive it here.
The motion to dismiss appeal was quite in order and it is granted accordingly. Appellees’ costs will be limited to the usual counsel fee, allowable on motion to dismiss, plus cost of printing their brief.
Sharpe, Smith, Reid, Boyles, Kelly, and Care, JJ., concurred with Black, J.
Dethmers, C.. J., concurred in the result.
Mr. Justice Jackson signed the memorándum, as circuit justice of the second circuit and his opinion is not officially reported. Certiorari was later denied. See 348 US 875 (75 S Ct 112, 99 L ed 689).—Re-gostes. | [
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Reid, J.
This suit is in the form of a common-law action, trespass on the case. Defendant claims' the action is of such nature that under our statute, it is not cognizable by a court of common-law-jurisdiction. :
Defendant took the deposition of plaintiff, Dale1 H. Totten, as cross-examination, which deposition was filed on April 30, 1954, the same day on which' defendant’s motion for a judgment on the pleadings was filed. The motion was denied by the court'on May 24,1954. On leave granted, defendant took an appeal in the nature of certiorari from the order of the trial court denying the motion for judgment on the pleadings. ' CL 1948, §650.14 (Stat Ann § 27.2604). ■:
Plaintiff claims that he was employed as time-1 keeper in the office of defendant. The last day of regular work before a long week end and Christmas holiday fell upon Friday, December 21, 1951. Defendant arranged a pre-holiday party for certain of' its employees in the offices and within its factory building. In connection with the pre-holiday party, defendant continued plaintiff on duty and directed him to remain throughout the said party and to close' up and make sure that all persons attending the party had left defendant’s premises before plaintiff should conclude his work and leave the same. At a1 late hour on December 21, 1951, the pre-Christmas' party came to an end and plaintiff walked out of the plant and crossed Christopher street to defendant’s parking lot where all the employees of the company parked free. Plaintiff further claims that when he got to his car he started the motor and concluded he had better go back and check to see whether everything was all right, whether he had locked the office, turned out the lights and everything, because that was very important; that he often does things like that; that he went back to the factory after having turned off the engine in his car, came to the same door of the factory that he had come out of; there was no one at the door and the door has an automatic lock; it has glass; that when he pounded on the door the plant patrolman came to the entranceway inside; that plaintiff told him he wanted to get back on company business; that the patrolman “just waved his hand and waved me away from the door,” so plaintiff turned around and went back to the car, after again crossing Christopher street, but does not know whether he got as far as the car because he had a fainting spell due to his diabetic condition.
It is further the claim of plaintiff that he lay in a comatose condition so long as to suffer from the effects of partial freezing, and as a result he lost all 8 fingers and most of his hands which were amputated by reason of the exposure; that he also suffered shock and agony and that his health has been greatly reduced and permanently impaired, on which grounds he seeks damages.
Plaintiff further alleges in his declaration that he had a right to re-entrance to the plant and factory and further, that the defendant, its servants, employees and agents were personally well acquainted with plaintiff, knew of his status as employee, and of his disabilities as a chronic diabetic, but negligently, recklessly and wilfully barred and excluded plaintiff from the plant and denied him entrance thereto and subjected him to the risk of coma, collapse and death and by reason of the negligence and wilful misconduct of defendant’s servants and agents, that plaintiff collapsed on the parking lot and became unconscious and in a coma, and that by reason of his exposure he suffered damages for which he brings suit.
Plaintiff recognizes that the relationship of the parties here presented is of an employee acting outside of the jurisdiction of his employment but claims it to be within the outside limits of the employer-employee relationship.
' Defendant stresses that the plaintiff himself characterized his purpose in returning to the factory as being “company business,” and that plaintiff’s allegation of a right of re-entry into the factory could only be the right of an employee, in which claim we find defendant correct and we conclude that plaintiff bases his action upon the relationship.
Defendant stresses the title to the workmen’s compensation act as indicative of its purpose, which title is:
“An act to promote the welfare of the people of this State, relating to the liability of employers for injuries or death sustained by their employees, providing compensation for the disability or death resulting from occupational injuries or disease or accidental injury to or death of employees and methods for the payment, and apportionment of the same, establishing an industrial accident board, defining its powers, providing for a review of its awards, making an appropriation to carry out the provisions of this act, and restricting the right to compensation or damages in such cases to such as are provided by this act.” See caption preceding CL 1948, §411.1 (Stat Ann 1950 Rev § 17.141).
While the parties differ in their interpretation of the title, it seems to us fairly certain that the title should be. considered as relating to the liabilities of employers for injuries or death sustained by their employees, within the limits of the relationship, and that the right to compensation or damages in such cases is restricted to such compensation as is provided for by the act. In Munson v. Christie, 270 Mich 94, we say at page 98:
“It appears from the title the act is one providing that as against the employer the injured employee ánd his dependents have no rights and can enforce no liability except those provided in the act. We need not read beyond the title of the act to find this intent and purpose of the legislature clearly expressed.”
Courts in some States in construing the statutes of their own State have held that the workmen’s compensation law does not bar an employee from suing his employer at law for an injury for which no recovery is provided by the terms of the act. Still we consider that such conclusions by other jurisdictions must be read in the light of applicable statutes. See Dailey v. River Raisin Paper Co., 269 Mich 443.
Our workmen’s compensation act taken in its entirety and read- in light of the title to the act, as we construe it, hars plaintiff’s action. Plaintiff’s action is of such a nature as not now cognizable by a Michigan court of common-law jurisdiction.
The order appealed from is reversed. The cause is remanded to the trial court with instructions to enter judgment for defendant. Costs to defendant.
Cars, C. J., and Sharpe, Dethmers, and Kelly, JJ., concurred with Reid, J.
For several citations concerning several questions on the meaning and validity of the workmen's compensation aet, see Dalion v. Ford Motor Co., 314 Mich 152 (19 NCCA NS 158). | [
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McAlvay, J.
Plaintiff, as administrator of the estate of his son, Marvin Feldman, a child of the age .pf four years, brought suit against defendant for damages occasioned by the death of this child, claimed to have been caused by the negligence of the servants and agents of defendant. Plaintiff and his family lived on Winder street, in the city of Detroit, between Hastings and Rivard streets, at about the middle of the block. On Sunday afternoon, May 21, 1905, he, with his wife, were at home as he testified, “enjoying a Sunday afternoon rest.” Some one of his relatives had given the boy some money. He went out of the house with his sister, who was seven years old. Plaintiff did not know where he was going. He was next seen on Hastings street going north on the east side of the street with a little girl. There is some doubt whether this girl was the sister. One witness testifies that it was his daughter, of the age of six years. When the boy had gone a short distance north on Hastings street, upon which there is a street car line of defendant company, he turned out into the street alone, running across it, supposedly towards some candy shops located almost opposite. He was struck by an approaching car, and killed. It is admitted that this car had stopped at Napoleon street, next south of Winder street. There is a dispute as to whether it stopped at Winder street, and there is also a dispute as to whether the car was running fast or slow at the time of the accident. The record shows that the boy was 20 feet or more north of the corner of Winder street when he started to run across the track. The distance from this corner north to the alley is 9? feet. The outside length of the car is 35 feet. It was stopped about 2 feet south of the south line of the alley. It moved about 40 feet after striking the child.
No question is raised as to the competency of the motorman, nor as to his acts in stopping the car. There is a dispute as to whether the gong was sounded by him. When the accident occurred, the conductor was. in the car, taking fares. He saw nothing of the accident. When he came out of the car, a crowd had gathered and set upon him, and assaulted him violently. The case was submitted to the jury and a verdict returned in favor of plaintiff, upon which judgment was entered.
Defendant brings the case here for review upon a writ of error. Errors are assigned upon the charge of the court, and the refusal to charge as requested relative to the contributory negligence of plaintiff, and also upon certain rulings upon evidence. The most important question in the case is whether, under the facts presented, the court was in error in charging the jury.that—
“There is no testimony tending to show any contributory negligence on the part of the father, so that the question of whether or not there is a liability depends simply and solely upon the question whether or not the motorman was negligent.”
The first question to be considered is whether, if plaintiff was guilty of contributory negligence, such negligence may be imputed to his infant child in this case. Upon the reargument of the case counsel for plaintiff gave large attention to the question, and cited numerous authorities which he claimed supported his contention, that such contributory negligence could not be imputed to the child in cases like this. This action was brought under sections 10427, 10428, 3 Comp. Laws, known as “Lord Campbell’s Act,” and commonly called the “ Death Act.” The profession is familiar with its terms.. In all such cases the action must be brought in the name of the personal representative of the deceased,—
“And the amount recovered in every such action shall, be distributed to the persons and in the proportions provided by law in relation to the distribution of personal property left by persons dying intestate,” and “the jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from such death, to those persons who may be entitled to such damages when recovered.”
In the instant case under this statute the suit is brought by the father, as administrator of the personal estate of his minor child who died intestate, alleging that as such he is entitled to what he would have earned had he not been killed by the negligence of defendant, and by such death plaintiff was damaged in that he lost the value of the services of his intestate. There is want of harmony in the authorities upon the question of the negligence of a parent being imputed to the child of tender years in actions for personal injuries to the child. ¡We find from an examination of the authorities that the question has been, considered by the courts in three classes of cases:
(1) In actions brought by the child in its own right.,
(2) In actions brought by the parent for loss of services.
(3) In actions brought under Lord Campbell’s act by the personal representative of the child to recover for loss of services to the parent.
In the first class of cases, by the great weight of authority, it is held that the negligence of the parent cannot be imputed to the child. In the second class the negligence of the parent will bar the action. In the third class, where, although the action is brought by the personal representative for the benefit of the child, if the parent is the real beneficiary, his contributory negligence will be imputed to the child. The most recent discussion upon this question, where cases are cited and digested, and reference is made to all the leading authorities, will be found in the first two of the following cases: Davis v. Railroad Co., 136 N. C. 115 (48 S. E. 591, 1 Am. & Eng. Ann. Cas. 214, and notes); Atchison, etc., R. Co. v. Calhoun, 18 Okl. 75 (89 Pac. 207, 11 Am. & Eng. Ann. Cas. 681, and notes); also Ploof v. Traction Co., 70 Vt. 509 (41 Atl. 1017, 43 L. R. A. 108, 13 Am. & Eng. R. R. Cas. [N. S] 702); Tiffany, Death by Wrongful Act, §§ 68-72.
In this case the fact that this child was unattended upon the street at the time he was killed by the car established prima facie the negligence of his parents. Whether their conduct should be excused or justified by circumstances was a question of fact for the jury, and the court should have so instructed. Grant v. City of Fitchburg, 160 Mass. 16 (35 N. E. 84, 39 Am. St. Rep. 449). See, also, Lindsay v. Railroad Co., 68 Vt. 556, at page 567 (35 Atl. 513); Davis v. Railroad Co., supra; Green v. Railway Co., 110 Mich. 648 (68 N. W. 988). The court was in error in charging the jury upon the question of contributory negligence as above quoted. As a new trial will be ordered, other questions must necessarily be passed upon for the benefit of the trial judge.
A witness named Jacobs was produced by plaintiff, and testified relative to the value of the services of plaintiff’s intestate, to recover the loss of which this action was instituted. His examination shows that he had no knowledge upon which to base his opinion. He testified, over objection and exception:
“ It looks like that, if the boy turned out anything like a success, he could get $4,000 or $5,000 or more.”
This was his answer to a question as to what would be the earnings of this child over and above its costs and expenses np to the age of 21 years. Witness had already said he could tell what his experience had been, but could not tell for others. It was the random, loose statement of a garrulous witness, and should have been stricken out as defendant requested.
A witness, over an objection, was permitted to testify that the motorman 15 or 20 minutes after the car struck the child, but before the body had been removed from under it, made the statement, “ Gentlemen, it is my fault.” A motion to strike it out was denied. It is urged that this was a voluntary and spontaneous statement, made by the motorman while in the discharge of his duty, and so near the time of the accident as to be part of the res gestee. The witness states that a great crowd of a thousand people had gathered about the car; that they became noisy; that they were talking with the motorman when he made this statement. The record also shows that this crowd was violent; that the conductor as soon as the accident occurred ran to assist in getting the child out from under the car, but was prevented and not permitted to do so by this crowd, and was set upon by them and seriously assaulted and injured; that they also assaulted the motorman, and that the conductor ran to a telephone for police protection. This witness says that the motorman stood on the platform of the car with tears in his eyes. All of the authorities in discussing the admissibility of declarations of this character hold that such statements must he voluntary and spontaneous. Under the circumstances of this case, this statement claimed to have been heard by this witness cannot be held by this court to have been either voluntary or spontaneous. It is not necessary to know what the questionings of this angry and excited crowd were. They had already assaulted him and severely injured the conductor. The overwhelming inference from these facts is that whatever he said was under duress and in dread of personal violence. To extend the mantle of res gestee to include statements so made would be repre hensible. For the reasons given, the testimony should have been stricken out. No opinion is expressed as to whether under other circumstances the motorman’s statement would have been admissible. It was error under these circumstances to admit it.
Other assignments of error are discussed, but an examination discloses that they are of minor importance, and, in view of a new trial, and the probability that they will not arise again, we do not think they require attention.
The judgment, for the errors pointed out, is reversed, and a new trial ordered.
Ostrander, Hooker, Moore, Brooke, Blair, and Stone, JJ., concurred. | [
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Blair, J.
Defendant was convicted of the crime of murder in the first degree on the 9th day of April, 1910, and on the same day he was granted 30 days’ time within which to move for a new trial and settle a bill of exceptions. On the 12th day of April, 1910, defendant was sentenced to State prison at Jackson for the remainder of his life and the proper warrant and commitment papers issued, upon which he was incarcerated in said prison. On the 14th day of April, 1910, a motion for a new trial was made and filed, which motion was argued on April 19th and decision thereon withheld. At the conclusion of the argument defendant’s attorney requested the court to certify so much of the record to the Supreme Court as would test the validity of Act No. 175 of the Public Acts of 1905, in pursuance of the provisions of sections 11966 and 11967, 3 Comp. Laws. In accordance with the request of defendant’s attorney, and, as stated in the certificate, in pursuance of the sections referred to, the trial judge has certified to this court a portion of the record, together with a memorandum of certain questions of law, for our opinion.
The sections in question appear in their present form in the Revised Statutes of 1838, pt. 4, tit. 2, chap. 5, §§ 3, 4, and from that time to this, so far as we can ascertain, no question has been certified to this court in pursuance of said section 11966. We are, therefore, unable to obtain any aid from our own decisions in construing these provisions. In Wisconsin, however, a statute substantially the same as ours has been construed by the supreme court to require the report to be certified before judgment, holding that after judgment a writ of error must be resorted to. State v. Sheppard, 37 Wis. 395.
We regard this decision as a correct interpretation of our statute, and we, therefore, decline to consider the questions reported for our opinion.
Ostrander, Moore, McAlvat, and Brooke, JJ., concurred. | [
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Moore, J.
The plaintiff sued and recovered a judgment upon a contract for the furnishing of wagon springs. The plaintiff claimed damages on two grounds under the contract set out in the declaration:
(1) Because some of the springs furnished by the defendant company were defective, and had to be replaced by others; and,
(2) Because, the defendant, failing to furnish the number of springs called for by the contract, the plaintiff was thereby compelled to purchase elsewhere, at a price in excess of that fixed by the contract, which excess is the basis of a claim for damages.
The case was tried before a jury. From a judgment in favor of plaintiff, the case is brought here by writ of error.
Defendant claims the theory on which the trial judge permitted the case to be tried was a denial of justice, for the following reasons:
(1) He permitted alleged defects to be proved by the mere statement of a witness referring to complaints from customers, and in no way specifying wherein the springs did not come up to the kind required under the contract.
(2) Because, the principal contract being one which the statute of frauds requires to be in writing, all modifications of such contract must also be in writing.
(3) The contract gave to the defendant additional time within which to perform its obligations under certain conditions which the testimony or the offer of testimony showed did exist. It became, therefore, a matter of considerable variation, and a matter of much moment to the defendant whether it would accept the right to delay given under the contract, or whether it would, at additional ex pense to itself, waive that right in order that the plaintiff might sooner receive its supplies.
We think each of these contentions was fully met by the testimony offered on the part of the plaintiff.
We will call attention to some of the testimony. Mr. Hoof, who made the contract on the part of the plaintiff with Mr. Hirsch representing the defendant, testified in part as follows:
“ I made up the entire bill of particulars, and access is given to all of our books, and I am familiar with all the facts with reference to all these purchases by the customers, and in each case the difference between the contract price and the market price actually paid.
“Q. Now you may state the total amount you paid as indicated by the bill of particulars in excess of contract price to fill the orders of customers of H. Scherer & Co. of the kind of springs specified in the contract with the defendant under their direction.
“A. The total amount of these charges is $782.29, and from that amount is to be deducted for defective springs $164.07, leaving a balance of $618.22. This indicates the amount charged because of difference in price. In each one of these instances mentioned in this bill of particulars, I notified the Independent Steel & Wire Co. of the sale and purchase. They probably furnished us 2,000 pairs of springs, which did not come up to quality. Apparently when making them the steel was overheated, which took the temper out, and when they were tested the seat spring, would not spring back to the proper position by one or two inches, sometimes three or four. They were poorly constructed. * * *
“Q. I will ask you, did you, with reference to each one of these items in the bill of particulars, have defective springs furnished by the Independent to you on which you are claiming a refund of the money paid by you to the Independent ? Did you call Mr. Hirsch’s attention to it orally or in conversation F
“A. Yes, sir; orally. We called his attention to it, and he authorized them to be returned to their factory, and he promised to credit us on account with that money. Mr. Hirsch promised to pay back the amount which we claimed in the bill of particulars as a credit for defective springs returned. The defective springs in the bill of par ticulars amount to $336.33. Our total claim is $783.39, deducting from which $336.33, for defective springs, leaves $546.07 as representing the amount we paid in excess of the contract price.”
This witness testified that he saw many of the springs which his company had sold to its customers which proved to be defective and had been returned to the defendant company at Chicago; that he examined and tested them; and that he examined many of them in the presence of Mr. Hirsch or Mr. Guiney, and that the springs were defective and were admitted to be. He further testified:
“ I presented personally to Mr. Hirsch a memorandum or statement of defective springs, and then again would .send him an invoice of every charge. He stated that if the springs were defective he would make the full allowance for them, and he was satisfied they were defective because they had been getting out a bad lot of springs, and the customers were justified in their complaints. We. presented to Mr. Hirsch a full statement of the springs shipped oh their authority from other factories to our customers, and in each instance we made an invoice to the customer. * * * We sent invoices to Mr. Hirsch in every case for the difference in price as fast as the invoices would come from other factories upon these orders and which he had authorized us to purchase outside. We afterwards had a talk with him about the amount of these items, discussing the price we were paying, and he said it was all right and that he could not make them; to go on and fill the orders and charge him with the difference in price. There was no objection whatever made to this. The only item they disputed was the freight on one or two little shipments to California. They said they would allow for the springs but said they did not feel they wanted to allow all the freight. This freight is not involved in this controversy. The total amount of interest due us is $150.33. ■ The principal is $783.39, and the interest $150.33.”
The case was carefully presented to the jury.
Judgment is affirmed.
Ostrander, Hooker, Blair, and Stone, JJ., concurred. | [
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McAlyay, J.
Complainant and his wife were the owners of a farm of 250 acres in Saginaw county; the title of 75 acres of which was in the husband and wife jointly and the balance in the wife. This land was conveyed by them jointly to defendant December 24, 1904, subject to a certain incumbrance of $200. As part of the same transaction, and in consideration of such conveyance, defendant at the same time made, executed, and delivered to complainant the following written agreements :
“Saginaw, Mich., Dec. 24, 1904.
“ I hereby agree to pay the taxes on the Herpel farm, to pay $25.00 per month to Ernest Herpel and Katherina M. Herpel as long as they both or either of them do live, in consideration of their deeding to me free of all incumbrance, except mortgage now on file, their farm known as the Herpel Farm, and on which they now live.
[Signed] “John C. Herpel.”
“Saginaw, Mich., Dec. 28,1904.
“ In consideration of one dollar to me in hand paid and other valuable consideration, I hereby agree to lease and rent to Ernest Herpel and Katherina M. Herpel, his wife, the following described farm being situated in the township of Taymouth, county of Saginaw and State of Michigan, and described as follows: Lots 2 and 3 except the north 15 acres thereof, and all of lots 4, 5, 9 and 10 in section 7, town 10 N., Range 5 East, they, the said Ernest Herpel and Katherina M. Herpel his wife, to have and to hold peaceable possession of the same and to have the entire use of the entire premises above described, including all of the buildings and appurtenances thereunto belonging as long as they both or either do live.
“ In witness whereof, I have hereunto set my hand and seal this 23rd day of December, 1904.”
Complainant and his wife were old people, of the age of about 80 years, at the time of this transaction, and it is charged in the bill of complaint filed asking that the conveyance be set aside that it was procured by fraud and undue influence, that the grantors did not understand that they were making conveyance of their property, and that the wife at the time was mentally incompetent to transact business, and weak from long sickness caused by an incurable malady. Complainant also charged that defendant was financially irresponsible. The bill contained a prayer for general relief. The value of this land conveyed to defendant was about $6,000.
Defendant was not related to complainant and his wife. They had no children. Defendant at the age of two years was left with them by his father in 1857, and was brought up by them as a member of the family, until he was married in 1879, and went to live upon 69 acres of .land complainant’s wife had given him. He lived on this farm about a year, and then came back and was furnished a house to live in on the farm of complainant and his wife. In 1882 he sold the land which had been given him and moved to South Dakota, where he engaged in the implement business. He afterwards went through bankruptcy, and had nothing left over and above exemptions. The date of bankruptcy is not fixed by defendant, who thinks it was 18,99. After the papers above set forth were given, defendant returned to South Dakota, leaving complainant and his wife in possession of the farm, and the record shows that he made payments as agreed. He ■came back on account of the illness of complainant’s wife .shortly before her death, which occurred January 8, 1906. During that visit, he claims that he made a verbal agreement with complainant, at his request, to come back and take the farm and certain personal property, and take care of complainant and give him a home for the rest of his life. Defendant did return in March, 1906, and claims he did this at great financial loss, and that under this verbal agreement he has since operated the farm and cared for the complainant. Complainant denied that any subsequent agreement was ever made, claiming that defendant returned and took charge of the farm without authority, and assumed to make repairs and improvements without consulting him; that on account of harsh and violent treatment complainant left the farm in September, 1908, and went to live with a relative of his deceased wife, and remained away until June, 1909, when defendant brought him back about two weeks before this case was heard. After defendant took charge of the farm in April, 1906, no monthly payments were made by him to complainant. In November, 1907, defendant, alleging that he was interested as a son, petitioned for, and secured the appointment of, a special guardian of complainant’s estate on the ground of mental incompetency; the petition stating that there was no real estate,- and $433 personal estate, and that an application for a general guardian was then pending.
Upon the hearing in this case a decree was granted complainant, determining that he held a life estate in’said lands, and also that there was due him $717.58 unpaid payments under his written agreement from the time defendant took possession under the claimed verbal agreement; and it was also decreed that defendant pay $25 monthly during complainant’s lifetime, and that defendant pay to complainant $150 as rental of the farm from September, 1908, to June, 1909, and $100 per year thereafter as long as he remained in possession, and also that these and all amounts due and to become due from defendant were declared a lien upon the land. Defendant has appealed. The complainant has not appealed.
From an examination of this record we are satisfied that the court below in the main determined the case correctly. There is no dispute but that the conveyance and written agreements were entered into as alleged. Complainant has not appealed from a decree establishing and affirming such conveyance, and it will therefore not be modified or changed in his favor. Proctor v. Robinson, 35 Mich. 284, and notes. As between these parties, a life estate was reserved by complainant and his wife, and the survivor of them, by the terms of the written agreements. The later verbal agreement claimed by defendant is not satisfactorily established by his testimony, and, if established under the circumstances of this case, would be in valid, and would not operate to divest the complainant of his interest in these lands, because not in writing.
Defendant upon this appeal makes but two objections to this decree. The principal objection is that the court should not have charged him with the aggregate amount of the payments due under his written agreement after he took charge of the farm. This claim is founded upon his claimed verbal agreement, and that he has made permanent improvements upon the farm and taken care of complainant. We have already disposed of the verbal agreement, and it requires no further consideration. Since he assumed charge of this farm, defendant has had all the benefit of all the income therefrom without accounting to complainant. The complainant under his life lease was entitled to the full and absolute possession of the premises, and to the monthly payments of the consideration for the conveyance agreed to be made by defendant. The fact that during that time no proceedings were instituted to eject defendant is no waiver of the complainant’s right to the payments. Complainant did not make, and on account of his weakened mental and physical condition as shown by defendant could not have made, any binding agreement waiving these payments. During nine or ten months of the period complainant did not reside with defendant and was not supported by him. The record shows that he has paid no more money to complainant on this agreement since April, 1906, than was credited to him by the court in its decree. He has expended money in permanent improvements. As the remainderman, subject to the life estate of complainant, such improvements having been made of his own accord, will be presumed to have been made for his own benefit. All the money paid by defendant since the conveyance to him is but a small part of the value of the premises. The court was justified from the record in finding the amount stated in the decree as a balance on account of the agreed monthly payments.
The other objection is to that part of the decree requiring defendant to pay a rental of the farm of $150 from September, 1908, to June, 1909, and afterwards at the rate of $100 per year. It is claimed that this is not supported by the evidence, nor warranted under the bill of complaint. While we are satisfied that under the general prayer for relief the court might dispose of all matters between these parties arising out of the relations between them in their dealings with this property, yet, we do not think that, from the evidence in this record, the court could say what would be a reasonable amount per annum which complainant should receive as the value for the use and occupation of these premises, and therefore in that respect the decree should be modified. The court correctly decided that, under the written agreement between the parties, the complainant held a life estate in the premises with full right to possession. He had been deprived of that possession by defendant, and under the rule adopted by this court, where a court in chancery has jurisdiction of the parties and of the subject-matter, complete relief will be granted, and all questions arising out of the controversy will be disposed of, this matter should be passed upon in this case. The court will therefore remand the cause to the circuit court for the sole purpose of taking proofs as to the value of the use and occupation of the premises during the time actually occupied by defendant, the court to find said amount from said proofs and charge the same against defendant to be added to the amount already found due complainant. In other respects the decree of the circuit court is affirmed, with costs of both courts in favor of complainant.
Bird, C. J., and Brooke, Blair, and Stone, JJ., concurred. | [
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Hooker, J.
The plaintiff received a judgment against several defendants, among whom was Benjamin Purnell, who alone has appealed. Purnell is the head of a sect called the “House of David,” which has grounds called “The Park Springs of Eden,” near Benton Harbor, where it at times invites the public. On the occasion of the injury of which the plaintiff complains, the public had been invited, by the distribution of handbills, and a steamer from Chicago had brought over quite a large crowd who went to the park. The plaintiff went there with one Harry Williams and her sister and brother-in-law. Williams had at one time been a member of the sect, and afterwards had trouble with the members, and one witness swore that on the day in question he had told him not to go upon the premises. This is disputed by Williams. Wolmar and Bell, both large men and members of the sect, the first named being their private watchman, and both being defendants in this case, are alleged to have gotten into a fight with Williams and his party, and there was testimony that both Wolmar and Bell made an unprovoked assault upon both Williams and plaintiff. This is denied by other testimony, and it is claimed that Wolmar and Bell were first assaulted by both Williams and plaintiff. It is claimed on behalf of the appellant that there was no testimony whatever tending to show his participation or complicity in the alleged assault upon the plaintiff.
All of the testimony which can be claimed to have a tendency to prove his complicity is the following:
(1) Williams had made a bitter attack upon the sect, and by conversation, preaching, and publication of a book had denounced it, claiming that it had defrauded him. His claim was finally adjusted and settled. It is manifest that there was a strong feeling against him among the members.
(3) On entering the place, he had met some of the members, among whom was Bulley, and greeted them in a friendly way, and all agree that he had made no disturbance.
(3) A short time later these two men and Bulley approached him and his party and began an attack upon him, and followed the party up and made two other attacks, and upon the second and possibly the third Purnell was a few feet distant, while Williams and the plaintiff were being assaulted and shouted repeatedly: “Kill him! Kill him! We have got him now! Kill him! ”
(4) There was testimony that Bulley, after meeting Williams, immediately went to. “ headquarters,” returning with Wolmar and Bell, when they approached and attacked Williams; that Purnell was near by at the second and third assaults, if not at the first, and was using the language stated, and was within six feet of plaintiff when she was struck. Although present at the trial, Purnell did not testify.
Prom the circumstances, counsel asked the jury to infer that Purnell participated in the attack if he did not direct it. The court instructed the jury that:
“There is no evidence in this case that Benjamin Purnell assaulted the plaintiff. He cannot be held liable in this case unless you find that he counseled, instigated, aided, and abetted in the assault upon the plaintiff. Some of the witnesses testified that Purnell uttered the words: * Kill him,’ or, ‘We have got him, kill him,’ during the encounter. If the assault upon the plaintiff was unlawful, and Purnell addressed those words to the assaulters while they were assaulting Williams and the plaintiff, with the design of instigating and encouraging the assault, then he is liable jointly with the other defendants. Even if these words were uttered, if they were uttered when no assault was being committed upon the plaintiff, then Benjamin Purnell is not liable; but, as I say, if these words were uttered while this affray was going on, and the plaintiff was in the mélée, then, gentlemen, Benjamin Purnell is equally liable with the defendants, if an unlawful assault was committed.”
This instruction and the refusal to direct a verdict in favor of Purnell raise the important question in the case. We are of the opinion that the charge was a proper one, and that the refusal of the request was not error.
Counsel state that they rely on three other points. We have examined them, and think they are not cause for a reversal.
Judgment affirmed.
Ostrander, Moore, McAlvay, and Brooke, JJ., concurred. | [
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Hooker, J.
The defendant’s street car line on Bristol street, in the city of Saginaw, crosses the Michigan Central Railroad. It is the rule that the cars must come to a stop before crossing the steam road, and proceed across the track only after the conductor has alighted from the car, gone to the railroad and ascertained that no train is approaching, and signaled the motorman to proceed. This rule was duly observed on the occasion of plaintiff’s injury. At the crossing plaintiff attempted to board the car, following the conductor, but fell or was thrown from the running board to the pavement and injured. This action is based upon the alleged negligence of the conductor in ringing two bells, causing the motorman to understand that the conductor was again upon the car, and to turn on the current and accelerate the speed of the car, causing plaintiff to fall or be thrown from the car. The court submitted these questions, and that of contributory negligence, to the jury, and a verdict and judgment for $500 followed. Defendant has appealed.
Refusal to Direct a Verdict. Counsel for defendant assign error upon the refusal of the trial judge to direct a verdict for defendant, contending, first, that there was no testimony tending to show that the conductor’s act in ringing the bell was the cause of the accident. It is said that the signal was not to direct the motorman to increase speed, which was a matter for him to decide for himself, inasmuch as it was not proper for him to stop the car upon the crossing, after he had started to cross it, and that it does not appear that an increase of speed at that time and place was not necessary, as the car was running very slowly; power being shut off as it descended the hill.
We are of the opinion that we should take judicial notice of the fact that conductors are in control of street cars, and may cause them to be stopped at any time or place if circumstances require it, and that, having knowledge that one is in the act of boarding a car or with his consent about to do so, should neither direct the starting of a stationary car, nor the acceleration of speed of a car in motion, nor what might amount to the same thing, give the two-bell signal, if the same would be understood by the motorman to mean that there was no longer reason for not putting on the power, which would have the effect to start or increase the speed of the car.
If the plaintiff testified to the truth, he told the conductor of his intention to board the car at that place, and signaled the motorman, and was given reason to believe that the conductor acquiesced. If so, the conductor owed him the duty of protecting him, by omitting the signal which might result in action by the motorman, until plaintiff was in a place of safety. We do not understand what counsel mean by the suggestion that there was no proof that it was not necessary to put on the power at that juncture, unless it is that the car was not in a safe place for stopping, and should not have been allowed to stop there. The circumstances indicate no danger on that occasion, and had the car even come to a standstill on the track (of which there was little danger, as it was running from two to six miles an hour), it would have been better than to injure a passenger. There is a reasonable inference that the motorman, knowing that his conductor was on the ground, would not apply power until he was apprised by the signal that he was ready to have him do so, and, under the circumstances stated by the plaintiff, there was evidence from which the jury might reasonably find negli gence on the part of the conductor in giving the signal, and the case so made was well within the declaration.
It is said to have been assumed by the judge that the conductor could have controlled the operation of the car over the road by withholding the signal. The instructions to the jury were that neither conductor nor motorman had a right to stop the car upon the crossing for a passenger, and that the latter was not obliged to retard its speed, and that only in case the acceleration of speed was in consequence of the signal, could plaintiff recover, and the judge expressly said that—
“ If you find from the evidence in the case that the bell signal which the plaintiff claims the conductor gave to the motorman when the conductor boarded defendant’s car, as the car was crossing the railroad tracks, was taken by the motorman to mean that the conductor had boarded the car after making the crossing, and that the speed of the car was not increased in response to any such signal, your verdict then would be for the defendant. That is, if the motorman did not, as a matter of fact, increase the speed of the car after the bell was rung, so as to produce a jerk or motion of the car that threw the plaintiff to the ground, but simply considered the bell evidence to him that the conductor was on the car, the plaintiff would not be entitled to recover. It is a question of fact for you to determine from all the evidence in the case whether he did or did not increase the speed, and the increasing speed produce a jerking motion of the car.”
This instruction is at variance with such an assumption.
That 'Contributory Negligence was Conclusively Proved. It must be admitted that an attempt by a man 62 years old, weighing 200 pounds, to board a street car going six miles an hour, may well be called negligent, and a jury would be justified in so finding. But in the first place it is not conclusively shown that the car was going six miles an hour, and, moreover, the conductor was apprised of plaintiff’s intention to board the car in motion, and therefore of the danger, and rang his bell with full knowledge of the situation, according to some of the testimony. We are of the opinion that these were questions for the jury, and we cannot say as matter of law that plaintiff was precluded from recovering a verdict. Booth on Street Railways, § 336; 27 Am. & Eng. Enc. Law (2d Ed.), p. 67.
That the Plaintiff Assumed the Risk. The learned trial judge instructed the jury that he assumed the risk of attempting to board the car, but not of the negligence in accelerating speed. We think this correct.
The Starting or Jerking of the Oar. Much is said in the briefs of counsel about the “jerking of the car.” Every one knows that the sudden application of brakes, or of power, has a tendency to disturb the equilibrium of one standing in the car or on the running board. It matters not whether the increased motion be a jerk or merely an increase of speed. It is described both ways in the declaration and testimony. Apparently plaintiff’s fall was due to the inertia of his body as the car started up. Exception was taken to the testimony of some witnesses as to their experience while riding on other cars of the defendant. This testimony would have been inadmissible but for the fact that defendant sought to prove that their large cars, including the one in question, had a device upon them that effectually precluded jerking. As it was, it was proper in rebuttal. It is contended that Miller’s testimony conclusively showed that he fell forward, and hence that it was obvious that it was caused by the brake. This testimony was not important, and, in our judgment, cannot have injured defendant. The cause was submitted by an exceptionally good charge, and we find nothing in the proceedings of which defendant can reasonably complain.
The judgment is affirmed.
Bird, C. J., and Ostrander, Blair, and Stone, JJ., concurred. | [
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Bird, O. J.
This is a personal injury case brought by the plaintiff to recover damages for being run into and knocked down by defendant’s horse, while she was driving it on Western avenue, in the city of Muskegon.
The plaintiff is an old naan 70 years of age, and is employed as a street cleaner in the city of Muskegon. Western avenue is paved, and extends from east to west. A street car track occupies the center of the avenue. On either side of the track, between the outer rail and the curbing, is a traveled way of 22 feet. In the early afternoon of November 19, 1909, plaintiff was working about midway of the traveled way on the north side of the car track with his face towards the west. He was scraping dirt ahead of him. While so at work defendant drove up from the rear with a single horse and buggy, and drove her horse against the plaintiff, striking him in the back, and thereby throwing him to the pavement, after which the carriage passed over him, and he was injured. The plaintiff testified that he did not hear nor see the defendant drive toward him. His companion, who was working upon the other side of the street car track, with his. face towards the west, testified that he did not hear nor' see defendant. No other vehicles or teams were on the street at the time. The plaintiff charged defendant in his declaration with carelessly, negligently, and with force and arms driving her horse in and upon him and injuring him. At the conclusion of plaintiff’s testimony, the defendant offered none, but requested the court to direct a verdict for the defendant, for the following reasons:
(1) Because no negligence was shown on the part of the defendant; and,
(2) If negligence were shown upon the part of the defendant, the plaintiff was guilty of contributory negligence, and cannot recover.
The trial court agreed with the position of defendant’s counsel and directed a verdict for the defendant.
1. There is practically no disagreement between counsel as to what the law is. Their disagreement arises as to what the evidence shows. The contention of defendant’s counsel is that the evidence establishes nothing but the fact of the injury, and that under the well-settled rule that negligence cannot be established alone by the proofs of the injury, the plaintiff failed to make a case. Quincy Mining Company v. Kitts, 42 Mich. 34 (3 N. W. 240). On the other hand, plaintiff’s counsel insists that something more is shown by the evidence than a mere injury, and he insists that the testimony brings it within another rule, viz., that, where the manner of the accident and the circumstances surrounding it are shown, they warrant an inference or presumption of negligence. Lillibridge v. McCann, 117 Mich. 84 (75 N. W. 288, 41 L. R. A. 381, 72 Am. St. Rep. 553). We are inclined to the view of the plaintiff that the testimony shows something besides the bare fact of an injury. It shows that defendant was employed by the city of Muskegon to clean the streets, that he.was so employed at the time, and that '.he was rightfully in the street. It further shows that the ¡street was wide enough so that she might have driven upon either side of him without driving upon the street car track; that there were no other vehicles on the street at the time; that it was daylight; and that her horse was within her control and going slowly. Considering in connection with these facts her duty to use reasonable care to avoid injuring those who might be at work in or using the highway, we think there was such a case made as entitled the plaintiff to go to the jury upon the question of her negligence. The defendant was driving in the direction of the plaintiff, and she could observe, if she had looked in the direction in which she was going, that plaintiff was at work, and had his back to her, and she might have assumed that the scraper with which he was working was making some noise, and, as she drew nearer, she could have observed that his inattention indicated that he did not know she was approaching, and had she exercised, in a slight degree, that care which she was bound to, undér the law, the accident might have been avoided.
2. "Was the plaintiff guilty of contributory negligence? It is well understood that streets must be repaired and must be kept clean, and necessarily men must be employed to do the work. Plaintiff was engaged in the lawful dis charge of his duties, and while he was bound to use ordinary care to avoid injury from passing vehicles, and could not recover if he failed in that duty, we do not think he was obliged to neglect his work to escape collision with those who were not using reasonable care in that regard. 18 Am. & Eng. Enc. Law (2d Ed.), p. 586; Smith v. Bailey, 14 App. Div. (N. Y.) 285 (48 N. Y. Supp. 856). Whether the plaintiff did give such attention on this occasion as he should have given, having due regard for his work, was a question for the jury.
The cáse is reversed, and a new trial ordered.
Ostrander, Hooker, Blair, and Stone, JJ., concurred. | [
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Hooker, J.
The bill in this cause prays the cancellation of some deeds, given by a mother to her two sons, on the ground of fraud. The only question raised is one of fact. We have examined the testimony and find an absence of anything like fraud on the part of the defend ants. It is like many other cases where a parent conveys her property to children, and dissatisfaction, discontent, and quarrels follow. Happily the complainant has reserved to herself a life estate in the premises from which she gets rent, so that the case is not one where the property has been dissipated and the parent neglected.
We think the decree dismissing the bill was right, and it is affirmed, with costs.
Ostrander, Moore, MoAlvay, and Brooke, JJ., concurred. | [
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Brooke, J.
This case was tried by the court without a jury. Certain findings of fact and law were filed by the court, which sufficiently disclose the nature of the controversy. They are as follows:
“Facts.
“ (1) I find that on April 33, 1908, George D. Hanna became surety upon an appeal bond on appeal to this court from the justice court of Grand Rapids by Joseph Dahrooge from a judgment rendered against him in favor of Nathan Kronman. Said bond was in the usual form. Plaintiff in this cause, George N. Hanna, was engaged in business in the city of Grand Rapids. Said George D. Hanna was a cousin of George N. Hanna, of the age of 34 years or thereabouts, and was prior to the 33d day of April, 1908, engaged in the retail grocery business in the city of Grand Rapids, and was indebted to divers and sundry wholesale houses for goods and merchandise.
“ (3) Judgment in said appeal case was rendered by this court against said Dahrooge and said George D. Hanna as surety on January 19, 1909.
“(3) On February 10, 1909, execution was issued against said Dahrooge and George D. Hanna on said judgment, and on March 9, 1909, defendant in this action, the sheriff of Kent county, by virtue of said execution, levied on the property involved in this action as being the property of said George D. Hanna. Said property consists of a retail stock of groceries and kindred articles and the fixtures pertaining thereto.
“(4) On March 10, 1909, the plaintiff in this action, George N. Hanna, replevined the property in question from the sheriff, claiming to own the same by virtue of bill of sale executed to him by said George D. Hanna May 13, 1908 [and recorded January 30, 1909].
“(5) I find as to this sale from George D. Hanna to George N. Hanna, as evidenced by the bill of sale referred to, that this sale came within the terms of the bulk-sale law of this State, being Act No. 333 of the Public Acts of 1905, and that its provisions were not complied with in this sale.
“ (6) I further find that at the time of said sale the said George D. Hanna was personally in possession of the said property, and continued in possession thereof personally from the date thereof until the levy of the said execution on said property by the defendant in this action, and that the said sale was not accompanied by an immediate delivery and followed by an actual and continued change of possession of said property, and that the said vendee, George N. Hanna, has not made it appear that .said sale was made in good faith and without any intent to defraud the creditors of said George D. Hanna so as to overcome the presumption of fraud as provided by section 9530, 3 Comp. Laws.
“ (7) I further find that said sale was not made in good faith, but was made with the intent to hinder, delay, and defraud the creditors and other persons within the terms of section 9533, 3 Comp. Laws, and that both George D. Hanna and George N. Hanna participated in such intent.
“ Conclusions of Law.
“(1) I find as a conclusion of law that Nathan Kronman was a creditor of George D. Hanna, within the terms of Act No. 333 of the Public Acts 'of 1905 at the time of the sale of said property to George N. Hanna, May 13, 1908, and that, the provisipns of said act not being complied with, said sale was void as to him, and therefore as to him said property remained the property of George D. Hanna, and was subject to said execution at the time of said levy.
“(3) I find as a further conclusion of law that Nathan Kronman was a creditor of George D. Planna within the terms of section 9530, 3 Comp. Laws, and that said sale not having been accompanied by an immediate delivery and followed by an actual and continued change of possession of the property sold, and said vendee, George N. Hanna, having failed to make it appear that the same was made in good faith and without any. intent to defraud the creditors of said George D. Hanna, so as to overcome the presumption of fraud arising by virtue of the provisions of said section, such sale is held void as to the said Nathan Kronman, and said property, therefore, remained the property of said George D. Hanna subject to said execution at the time of said levy.
“ (3) I find as a further conclusion of law that Nathan Kronman was a creditor of George D. Hanna within the terms of section 9533, 3 Comp. Laws, and that said sale, having been made with the intent to hinder, delay, and defraud the creditors of the said George D. Hanna, was void as against the said Nathan Kronman, and said property was therefore subject to said execution at the time of the levy thereof as the property of said George D. Hanna.”
It would serve no purpose of value to the profession to set out or examine the evidence upon which the court below based its conclusions as to the facts. Upon this point, it is sufficient to say that we think the evidence fully warranted the finding of the trial court that the sale in question was made for the express purpose of avoiding liability upon the appeal bond. Two facts only will be noted as bearing upon the good faith of the parties: First, the bill of sale was made within a few days after George D. Hanna had become surety upon the appeal bond, and after he had been advised by counsel that he might in consequence thereof be obliged to pay the judgment; and, second, the instrument was kept from record until the day after judgment had been rendered against him upon said bond.
The only question of law requiring consideration is: Was Kronman, the obligee in the appeal bond, a creditor of George D. Hanna, the surety on such bond, prior to the conditions of the bond becoming absolute within the terms of Act No. 223, Pub. Acts 1905, commonly called the “ bulk-sales act ?” It is urged by appellant that George D. Hanna’s liability upon the bond could not be fixed until judgment upon appeal, and therefore that the obligee in the bond was not, at the time of the sale, one of his creditors. A creditor is “ one who has a right to require of another the fulfillment of a contract or obligation.” 11 Oye. p. 1193, and cases cited in the note. It cannot be said that George D. Hanna’s liability was not fixed at the moment he signed the bond. It was fixed in amount, though contingent upon the failure of his principal to prosecute his appeal, and reverse or pay the judgment. A similar question was considered in Cutler v. Steele, 85 Mich. 627 (48 N. W. 631), where the court said:
“But complainant insists that Steele did not become a debtor to the bank until the maturity and protest of the note. It is true that the ultimate liability of Steele depended upon a contingency; still he had made a contract fixed and definite. The bank was under no obligation to pursue the maker of the note, but might look solely to the indorser. It is just as important in commercial trans-' actions that the financial condition of indorsers, guarantors, and sureties be known as that of the principal debtors. In fact, credit is often given in reliance upon their standing rather than upon that of the principal debtors. We are therefore of the opinion that the term ‘ creditors,’ used in the statute, includes those who have entered into contracts with parties as indorsers, guarantors, or sureties.”
See, also, Jackson v. Seward, 5 Cow. (N. Y.) 67; Karst v. Gane, 61 Hun (N. Y.), 533 (16 N. Y. Supp. 385); Bowen v. State, 121 Ind. 235 (23 N. E. 75); Carlisle v. Rich, 8 N. H. 44; Russell v. Stinson, 4 Tenn. 1; Kerber v. Ruff, 4 Ohio S. & C. P. Dec. 406; In re Appeal of Surety, 5 Ohio S. & C. P. Dec. 571. George D. Hanna was accepted as surety upon the appeal bond solely on account of his ownership of the stock of goods in question. To permit him to dispose of his stock immediately thereafter, without notice to the obligee in the bond, thus rendering the bond worthless, would result in encouraging the very fraud which the statute was designed to prevent. The statute is remedial in character, and should be given such a construction as will effect the plain legislative intent.
The judgment is affirmed.
Bird, C. J., and McAlvay, Blair, and Stone, JJ., concurred. | [
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Hooker, J.
The complaining witness, a girl 18 years of age at the time of the transactions detailed in her testimony, was the daughter of well-to-do German people in the city of Louisville, Ky. Her testimony shows that her attention was caught by an advertisement in the matrimonial column of a Cincinnati paper. It read as follows:
“Business man of means, refined, 36, wishes acquaintance of congenial young lady, eighteen to twenty-five; fond of amusements; correspondence strictly confidential; give description. ’K9 Inquirer.”
She wrote to the address mentioned, this letter:
“Louisville, Ky., Sept. 21, 1908.
“ Dear Sir: I seen yonr ad. in the Cincinnati Enquirer, and take the pleasure to answer it. I am a congenial, respectable, honest, young lady, 18 years of age. And I would like acquaintance of a business gentleman your age. I have blond hair, blue eyes, fair complexion, 5 feet 4 in. tall, weigh 120 lbs. And I am German-American. If you think you would like further acquaintance, I would be pleased to hear from you.
“Yours truly,
“ Miss Rosa Renz,
“1531 W. Ormsby Ave., Louisville, Ky.”
“Louisville, Ky., Sept. 25, 1908.
“Mr. A. J. Adams.
“ Dear Friend: I take the pleasure to answer your welcome letter which I rec’d. And I am very much pleased with your description. I would also like to meet you. I have no photo of myself at present, but I will have some taken. Then I will give you one. You say you would like for me to make an appointment with you. I surely will and hope it will be a suited one to you. I would like very much for you to come down to Louisville this coming Sunday (October 4). I will meet you at the depot. Let me know what time you will come. And to which depot you will come in. And how you will be dressed. I will also write and let you know how I will be dressed. Then there will be no danger of us missing each other. Or you may come any day you wish as I am mostly always at home. I hope you will come, and I will make everything just as pleasant for you as I can. I live at home with my parents and two brothers. My father died when I was a very small child, but I have a stepfather. I will close for this time. Hoping to hear from you soon, I remain,
“ Yery respectfully,
“Rosa Renz,
“ 1531 W. Ormsby Ave., Louisville, Ky.”
“Louisville, Ky., Sept. 30.
"Mr. A. J. Adams.
“Near Friend: Your letter received. Was pleased to hear from you. My brothers are 16 and 9 years of age. I never told my mother yet of me corresponding with you. I would like to come up to Cincinnati, but my mother knows that I have no acquaintance there. And that is the reason I could not get the money from her to come up on. But if you will send me a ticket I will come up. I will tell her I am going to spend a day with a young lady friend of mine. And then she will have no thought of me going to Cincinnati. I could come any day. And if you have honorable intention, I surely will come. I will close for this time, hoping to hear from you soon.
“ Yours truly,
“Rosa Renz,
“ 1531 W. Ormsby Ave., Louisville, Ky.”
Defendant’s letters were generally destroyed when read, as he requested. She went to Cincinnati at his request, and while there, he asked her to get married there but she refused, and went home the same day. She promised to marry him, however. He said he was obliged to go to Columbus on business and asked her if she would go up there if he should send her a ticket, and said they would get married there, and asked her to write him as soon as she got home. She did so and told him she would do so, and he sent her transportation to Columbus.
He wrote as follows:
“Columbus, Ohio, November 5, 1908.
“ My Dearest Rosa: I received your two letters, the one at the hotel, and also the one at the general delivery. The last one I got last night, and the first one I got yesterday morning. I went out at once yesterday and found out the best way for you to come. I think it is over the B. & O. to Cincinnati, and from Cincinnati over the Big Four to Columbus. It goes out of the same station that the B. & O. comes into Cincinnati. You will have about 30 minutes to wait in Cincinnati, but there is eight trains that leave there for Columbus every day, and you can get one every hour or two; so in case you miss one you can take the next one on the B. & O. from Cincinnati to Columbus. (Col. for Columbus.) There is only two or three trains all day, so you see it is best to go over the Big Four from Cincinnati to Columbus, but remember you take the B. & O. to Cincinnati, and from there the Big Four. I have telegraphed you two tickets. One you can get in the Louisville B. & O. office, and the other you get as soon as you get to Cincinnati. Right at the depot where you come into Cincinnati, that is the Big Four— the Big Four and the B. & O. have the same depot in Cincinnati. I think you will understand now, and all you have to do is to ask for a ticket for Miss Rosa Renz that was telegraphed there for you by me. If there is anything you do not understand, or should have any trouble, all you have to do is to telegraph me. If so, address No. 46 North Third street, and I will see to it at once. But, my dearest, there is no danger at all, as the tickets are paid for and will be delivered to you as soon as you call for them. Write me as soon as you receive this, and let me know what time you will leave Louisville so that I can meet you at the depot. Trains leave Louisville at 2:30 and 8:10 in the morning and 2:10 and 5:45 in the afternoon. They will make good connection in Cincinnati with the Big Four in Columbus. Address letter care of general delivery, as that is open until, about 9 p. m., but if you telegraph, address 46 North Third street. Well, my dearest Love, I will close for this time. Hoping to see you soon, with best wishes and a great many loving kisses, I remain, your ever loving
“Antony.
“P. S. I did not send ticket to your house, as it must he used the same day it is dated, with stamp on the back, so you see the other way is the better.”
She arrived there Saturday. He took her to his boarding house, kept by a Mrs. Familton, and got her a room, and one for himself. He told her that a marriage license could not be obtained on Saturday afternoon or Sunday; so they would get married on Monday, and while there he would call her his niece. He was a man about 45 years old. On Monday he made an excuse for not getting married, but said they would go to Cleveland and be married there. On the following Saturday they left for Cleveland. On the way he proposed to pass her off as his wife, but she refused to allow this. They went to the Wayside Inn, kept by Mr. and Mrs. Kingsbury, and he obtained a separate room for her there. He made further excuses for not marrying her at Cleveland, but said they would be married in Detroit the same day that they should arrive there, and on Thursday night, November 19th, they went by boat to Detroit. They went to the Cadillac and be again wanted to register ber as bis wife and be said he would get tbe license that day. Sbe told bim sbe would not pass off as bis wife until sbe was married. He then took some rooms at a Mrs. Morse’s and left her there, while be went out to get tbe license. Her testimony continued as follows :
“This was No. 55 Elizabeth street, west, a rooming bouse kept by a Mrs. Morse. We each bad a room by ourselves, a front and back parlor. He then went to get tbe license, and be came back with tbe license, and be asked me my people’s name, and I gave them, and be told me to sign my name to tbe bottom of tbe paper, which I did; and then be told me be would take it back and bring tbe certificate; and then be brought three papers and I signed my name to them, and be told me then we were married. I asked bim if we didn’t need a preacher to marry us, and be told me, ‘No.’ I told bim they did down in Kentucky, and be said: ‘ You must remember that you are not in Kentucky — you are in Michigan.’ I believed bim and be put tbe certificate then in bis trunk, and I thought it was all right. Exhibit D is what be brought back to me as tbe license, and Exhibit E is one of tbe certificates of marriage, and Exhibit F tbe other. He signed bis name and then I signed my name to Exhibit D in his presence. He said that was necessary. Then be said Exhibit D would be filed. After I signed tbe license I signed tbe certificate. He said I would have to sign them — to sign my name. He showed me bow to sign. * * * He said in Michigan we need three papers. X asked bim if we did not have to have a preacher to marry us, and be said, ‘ No.’ * * * And be says that was tbe reason they bad the three papers in Michigan. I believed that we were married at that time, and if I hadn’t X would never have lived with bim. Up to that time from tbe 20th on, X bad never bad connection with a man before in my life, and I bad connection with bim because X thought I was bis wife, and I lived with bim from Novem20th until tbe 28th. * * * About Wednesday be told me if I told anybody we were married he would pull up bis trunk and leave me. I bad been watching tbe papers to see if X could see tbe notice, and X couldn’t; and be wanted me to tell tbe people X was bis sister, and I suspected that we were not married; so on Friday I went to the county building to find out about tbe license; and when I came back to Mrs. Morse’s house I told him I had been to the county building and had found that no licenses were taken out; and he said there was, and he had paid a large amount to keep it secret; and he says I should pláce more confidence in him than that; and I told him: ‘Well, if I was wrong, I was sorry,’ and he said he would bring a man to prove that we were legally married. Then I had a talk with Mrs. Morse, and Detectives High and Larkins were sent for, and they came over in about an hour and took us both to headquarters.”
Copies of these papers are here inserted.
“Affidavit for License to Marry.
“ State of Michigan, ) aa
aa “ County of Wayne. [ SS:
“ November 20, 1908.
“John Antony Adams, as applicant for license for marriage between himself and llosa Mary Renz, being duly sworn, deposes and says that he is acquainted with the laws of Michigan relative to marriage, as printed upon the back of this blank; that there is no legal impediment to the marriage of himself and the other person named, and that to the best of his knowledge and belief, the following statements are true:
“Full name — John Antony Adams.
“ Age at last birthday — 26 years.
“White, Black, Mulatto, Indian — White.
‘e Residence — Detroit.
“ Birthplace — New York.
“Occupation — Physician.
“ Father’s name — John L. Adams.
“ Mother’s maiden name — Clara Houseman.
“Number of times previously married.
“Female.
“ Full name — Rosa Mary Renz.
“ Age at last birthday — 18 years.
“White, Black, Indian — White.
‘ ‘ Residence — Detroit.
“Birthplace — Louisville, Kentucky.
“ Occupation — Housework.
“Father’s name — Frederick.
“Mother’s maiden name — Mary Phloor.
“ Number of times previously married................
“Maiden name of bride, if widow...................
“Subscribed and sworn to before me, S. C. Wilson, clerk, in and for Wayne county, Michigan, 20th day of November, 1908.
[Signed] “John Antony Adams.
“Rosa Mary Renz.”
“Certificate of Marriage.
“ I, Samuel P. Stinger, of the city of Detroit, in the county of Wayne, State of Michigan, do hereby certify that on the 20th day of November, in the year A. D. 1908, John Antony Adams, of Detroit, in Wayne county, Michigan, and Rosa Mary Renz, of Detroit, in the county of Wayne, Michigan, were united by me in the bonds of matrimony, in the city of Detroit, in the county of Wayne, State of Michigan, according to the laws of said State, the license, authorizing the marriage of said parties, having been by them delivered to me as required by law, and that there were present, as witnesses, John Antony Adams, of Detroit, and Rosa Mary Renz, of Detroit.
“Dated, November 20th, 1908.
[Signed] “John Antony Adams, “Rosa Mary Renz.”
“ Marriage Certificate.
“This is to certify that John Antony Adams, of Detroit, and Rosa Mary Renz, of Detroit, were by me joined together in Holy Matrimony, according to the usages of the Church, and the law of the State of Michigan, on the 20th day of November, in the year of Our Lord, 1908.
[Signed] “ Samuel Stinger.
‘c Witnesses:
“S. C. Wilson.
“S. P. Snyder.”
The outline of facts hereinbefore given is taken from the testimony of Rosa Renz, the complainant. As the defendant was not a witness, much of it stands uncontradicted on the record, except as it may be affected by circumstances testified to by other witnesses. There was some corroborating testimony, however, and some of the questions raised relate to it.
By way of defense, defendant caused some depositions to be filed in the case under a stipulation that he might take them in the absence of the prosecuting attorney. He also called some witnesses, the apparent purpose being to prove that he cohabited with Rosa Renz in Columbus and Cleveland, and that Rosa Renz was a girl of dissolute habits at home.
Upon the argument, his counsel’s main contentions were that he could not be guilty of the offense charged, for the reason that he had cohabited with her in Ohio the week before, and, second, that the transaction showed a common-law marriage between the parties in Detroit. These two questions will be discussed first because they are the most important.
Unchastity. The learned circuit judge refused to give the following request offered by defendant’s counsel:
“ (a) If you believe from the evidence that Rosa Renz had carnal intercourse with this defendant while said parties were stopping at No. 16 North Third street, Columbus, Ohio, or while they were stopping at the Wayside Inn, at Cleveland, Ohio, then I charge you that the said Rosa Renz was not a previously chaste woman, as required by law to be in order to be seduced; that no sufficient time had elapsed for her to reform before the act complained of in Detroit, Mich., and therefore that the act of carnal intercourse complained of as taking place in the city of Detroit, on the 20th day of November, 1908, and relied on in the information in the case, was not seduction, and the defendant must be acquitted.”
He instructed the jury that:
" It is a part of the claim of the defense, on the other hand, that on the day in question that the complainant was not a chaste girl, and was not thus fraudulently deceived into yielding her virtue, but on the other hand, she had pursued a course of continued cohabitation with the defendant in Cleveland and Columbus, Ohio. I charge you, gentlemen of the jury, that the defendant at the bar cannot be convicted upon the charge in this court for any seduction which took place in Ohio; this court not having jurisdiction of such offense. It is not, however, true, as a legal proposition, that because a woman once submits to sexual embraces of the man, he cannot thereafter seduce her. The law does not contemplate that only virgins may be seduced, but the language of the statute is unmarried women. If a woman has submitted to the sexual embraces of a man, and thereafter has reformed and returned to the path of virtue, she may again be seduced by the same man, although the burden of proving such reformation would be upon the prosecution.
“ Every woman is presumed by law to be chaste until the contrary is shown. If, however, the evidence proved that she has departed from the path of virtue and it is sought to establish the seduction of her by the same man, her reformation and return to a chaste and virtuous character must be proven by the prosecution. So that, gentlemen of the jury, even though previous sexual intercourse between a woman and a man might be shown, yet, if the jury is satisfied that at the time of the alleged seduction she was of chaste and virtuous character, and was living a chaste and virtuous life, and was drawn therefrom by some artifice or inducement of the man, her second seduction would be as criminal as the first.
“ I do not wish to be understood as intimating to you, gentlemen, in any way, that the court is of the opinion that the complainant, Rosa Renz, had sexual intercourse with the respondent before coming to Detroit. That is a fact for you to determine. If you are satisfied beyond a reasonable doubt that it was not so, and that on the 20th day of November, A. D. 1908, she was a virgin, as she claims upon the witness stand to have been, and that she yielded up her virginity to the defendant by reason of the promise, artifices, and inducements practiced upon her by him, which caused her to believe that she was his wife, wherefore, she submitted to his sexual embraces and without which she would have not submitted to his sexual embraces, you must find him guilty.
“In addition thereto, even though she had previously submitted to his sexual embraces, yet had reformed and was again chaste and virtuous, if she yielded by reason of those artifices, promises, and inducements, this, too, would constitute the crime of seduction. In the first case that I have indicated to you, as well as the last, you must be satisfied of the chaste and virtuous character of the complainant, and that she was turned aside from the path of virtue and inveigled into submitting to the carnal intercourse with the defendant by reason of artifices, promises, or inducements, without which she would not have otherwise submitted to him.”
We understand this to be a correct statement of the law, and though the jury should have found that the complainant yielded to him in Ohio, they may also have found that she had seen her error, and determined to do differently thereafter, considering all of the circumstances. We understand that defendant’s counsel do not dispute the general rule, but contend that there was no testimony indicating a reformation — citing the case of People v. Bressler, 131 Mich. 390 (91 N. W. 639), where the circumstances were such that we were unable to say that there was a presumption of reformation. In the present case the court left the question to the jury with the instruction that the burden of proving it rested upon the prosecution. Under the testimony it would not be an unreasonable conclusion. The instruction was appropriate and it was correct. ■
In this connection we refer to some testimony, taken under objection, upon which error is assigned. It is this: The complainant testified that she became pregnant, and that she never had sexual relations with any other man, at any place or time. This testimony was competent, though perhaps of little importance. If the two facts were true, it was cogent evidence of a completed sexual act, but being, wholly dependent on the truthfulness of Rosa Renz, it was probably no more convincing than her statement that they had sexual intercourse. It was not error to admit this testimony.
Marriage. The defendant’s counsel offered a large number of requests in relation to their claim that the defendant and complainant were lawfully married in Detroit. If they were, this defendant was improperly convicted. The judge made no allusion to the subject in his charge, further than to say that the jury must find that she was an unmarried woman in order to convict defendant. The claim that the transaction in Detroit amounted to a valid common-law marriage seems to have been overlooked or ignored. Counsel for the State seeks to justify this upon the ground that there is no testimony in the case tending to prove the agreement necessary to such a marriage. If we can say that such is the fact, no error was committed; otherwise the question should have gone to the jury.
We have examined the testimony and we find testimony tending to show—
(a) A promise to marry when they should arrive at Detroit.
(b) An effort to convince the complainant by false instruments which they both signed that they were thereby married.
(c) Defendant’s statement to her that such was their effect.
(d) An utter absence of any suggestion of a present promise by one to the other, especially by him, that they would and did then take each other as husband and wife, and would live together as such thenceforward; but, on the other hand, most convincing evidence that he avoided any such promise, and that he had no intention to enter into the marriage relation with her.
(e) Cohabitation afterwards for a day or two, and until the complainant ascertained the falsity of his statements.
If this situation is one in which the law requires us to say that the parties made a valid contract of marriage, the question should have gone to the jury. If, on the other hand, the trial judge could properly say that there was no testimony tending to show a valid marriage between these parties, there was no error in the omission. Cases involving the proof of marriage arise in many ways, and common-law marriages are inferred from circumstances of greater or less significance, where the legitimacy of alleged heirs is concerned. Again there are cases where, as between an innocent woman and her seducer, it is held that promises and conduct may estop him from denying the marriage, although he had an actual intent not to be a party to a valid marriage. In a case like the present, where it is clear that the man not only intended to avoid a marriage which should bind him, and avoided making or having the woman make a present promise that they took each other as husband and wife, to be such thence forward, he should not be permitted to escape the consequences of his wrong by such a claim.
The cases of People v. Loomis, 106 Mich. 250 (64 N. W. 18), and Judson v. Judson, 147 Mich. 518 (111 N. W. 78), cited by counsel, are readily distinguishable from this case. In the former there was a clear, present promise, the very thing that is lacking here. In the latter, the bill was dismissed for the lack of the present promise to take each other for husband and wife. This is not a civil case arising years after a transaction, characterized by long years of cohabitation and conduct consistent with marriage, but one arising at once, depending upon the nature of the alleged promise of marriage, where the facts show that the minds of the parties did not meet in a common understanding of, and consent to, the present and future existence of the relation of husband and wife between them. The unrighteousness of the proposition that, one caught red-handed may lawfully set up the claim that the alleged contract, which he did not agree to, became nevertheless a valid marriage, binding upon both, because the woman acted in good faith and in the belief that she was married, cannot be sustained, where it affirmatively appears that it lacked the essential promise; if it can, where the duplicity has been carried so far as to make the promise, is a question we need not decide. We are of the opinion that the learned circuit judge did not err in denying these requests, and in omitting to .confuse the jury by this question of marriage.
Another question arose in this connection. It was claimed by the prosecution that the defendant was a married man at the time of his relations with Rosa Renz, and if so it would be an end to the claim of the alleged common-law marriage. Counsel attempted to prove it by defendant’s admissions, and error is assigned upon the admission of this testimony; it being contended that marriage cannot be so proved in criminal cases, and cited' the cases of People v. Lambert, 5 Mich. 349 (72 Am. Dec. 49), and People v. Loomis, supra. The former was a bigamy case. The latter was a seduction case, and hardly raises the question before us, as we merely held that a witness not qualified would not be allowed to prove the provisions of law in force in Canada. The Lambert Case, however, does hold that a defendant should not be convicted of bigamy, where the only evidence of the first marriage is proof of cohabitation and statements of the parties. It is true that the English courts have held that admissions of marriage are not sufficient to warrant a conviction in a bigamy case, or to prove marriage in a crim. con. case, following Lord Mansfield’s holding in two cases, viz.: Morris v. Miller, 4 Burr. 2057, and Birt v. Barlow, 1 Doug. 174, cases often said to have been departures from the existing rule, and cases that have been severely criticised. The rule was carefully limited to these two classes of cases, and is at variance with the general rule of law pertaining to other criminal cases, with no very good reason.
But this is neither a bigamy nor a crim. con. case and we are not disposed to extend the rule, as a few courts have done. This testimony was admissible both to prove that defendant had a wife, and also as characterizing his acts in making the alleged contract. For a discussion of this question, see 3 Wigmore on Evidence, § 2084 et seq.
In this connection we refer to a question which arose upon the introduction of two letters and two telegrams claimed to have been sent by the defendant to Mrs. Heye, complainant’s mother. She testified to one or more interviews with the defendant, after his arrest, in which he sought to induce her to go to Detroit. She stated that he came to Louisville and pretended to her to be a detective. He afterwards confessed that he was not a detective, but was defendant’s brother, and at last admitted that he was the defendant; that he had done wrong; that he was married, but would soon get a divorce. He succeeded in inducing Mrs. Heye to say that she thought she would go to Detroit. He agreed to await her at Cincinnati. The letters and telegrams purporting to come from there later, by mail and wire, bore his name (Adams), and contained allusions to the subject theretofore discussed between them. We think that they were competent evidence, although it was not shown that he signed or sent them, in any other way than through the connection that they intrinsically showed to the' previous conversation and the arrangement that he should write. This furnished some evidence of their genuineness, which thus became a question for the jury. See People v. Hammond, 132 Mich. 427 (93 N. W. 1084); 17 Cyc. 411.
Depositions. In making the people’s case the prosecutor called witnesses who confessed to making false depositions at the instigation of said defendant, and gave their conversations with defendant in relation thereto. These depositions were then offered in evidence to show the things that defendant had sought to prove in this way. We have already alluded to the defense that he sought to make. This testimony was admissible. It is always competent to show a defendant’s complicity in obtaining or attempting to obtain false testimony to be used in his defense, and the fact that he does not use it is unimportant. It was also competent to show by expert witnesses that several different names, ostensibly of different deponents, signed to a deposition, were in the same handwriting.
It was not error to admit the examination of witnesses called by the people, in relation to the contents of their depositions, without first reading them to the witnesses. Doubtless this should have been done had they desired it; but apparently they did not. These depositions were not withheld from defendant’s counsel, and were ultimately put in evidence against the strenuous protest of ’defendant’s counsel. Referring to the witness Myers, who testified to statements which he said were false, and alleged facts which he did not know of his own knowledge, but were told him by defendant, counsel sought to show, on cross-examination, that he had heard other inmates of the house make similar statements regarding the conduct of Rosa Renz. While it would have been proper to cross-examine this witness for the purpose of showing his knowledge, or that Adams did not make the alleged statements, proof that he heard others make them was unimportant. It was not substantive proof of the facts, being hearsay, and it was not inconsistent with the statement that Adams told him that. There was no error in this ruling.
The remaining assignments of error relate to unimportant matters, as the testimony stood, and we think that no injury resulted to the defendant from the rulings on which they were based; for example, the deposition of Crandall was not substantive proof in the case; hence it was not important whether he was at Wayside Inn in November, nor whether the Kingsburys said that he was or was not. The same result follows as to the proof about holes in the door and the sufficiency of the alleged test. The testimony of Larkins was harmless in regard to the statements of Familton, because he admitted the same fact practically.
We find no error in the record, and the conviction and judgment are affirmed.
Defendant’s sentence was imposed before his appeal was taken and he had served a portion of his time when its execution was interrupted by an order admitting him to bail, and he was released by the warden of the State’s prison. He is now subject to imprisonment under the sentence for the unexpired period thereof remaining at the time of his said release. The cause will be remanded to the recorder’s court of Detroit with directions to issue a new commitment to the sheriff of Wayne county and said warden, commanding said sheriff to forthwith apprehend said defendant and deliver him to the said warden, and commanding him, the said warden, to receive and safely keep the said defendant for a period equivalent to said unexpired portion of said sentence, in accordance with the command of said original commitment.
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Bird, C. J.
This proceeding had its beginning in the probate court of Jackson county, to probate the last will and testament of Agnes P. Woodworth, deceased. The probate of the will was resisted by George O. Woodworth, the husband o£ the testatrix, upon the grounds of undue influence and mental incompetency. The will was admitted to probate, and an appeal was taken to the circuit court, where a trial resulted in a directed verdict in favor of the will. After the trial in the circuit court, the contestant died, and the suit is now being prosecuted in this court by a special administrator, representing the estate of the contestant.
The testatrix was 74 years old when she executed the will. It was executed during her last illness, which lasted about two weeks. She inherited from relatives the estate which she left, and it was of the value of $5,300. The homestead was valued at $2,500, and they owned it as tenants in common. The testatrix and the contestant had lived together about 42 years, and most of the time in the city of Jackson. They had no children. The husband had no property save his interest in the homestead. He had not been very successful in accumulating property, and had managed his wife’s financial affairs so hadly that she placed them in the hands of her brother, J. Scott McConnell. The will was prepared from memoranda which she dictated to Judge Hammond, an old and reputable practitioner of the city of Jackson. It was a simple will, in which she gave her husband “sufficient furniture, bed, and bedding to comfortably furnish a room.” She divided her household furniture and personal belongings among her relatives, and to her sister, Cordelia E. Markham, she gave her bonds, amounting in value to $3,500, and to her brother, J. Scott McConnell, she gave the balance of her estate, amounting to about $1,800, and nominated him as executor of the will.
It was insisted by the contestant that she was not in a mental condition to dispose of her property; that, by reason of her illness and the effect of a certain medicine which had been given her, she was incapacitated to make a will; and that, if she had any testamentary capacity at the time the will was made, it had been overcome by the influence of her sister, Cordelia Markham, the principal legatée.
The assignments of error raise three questions, to which attention will be given:
(1) Was the trial court in error in admitting the evi- • dence relative to the quitclaim deed and the circumstances attending it ?
(2) Did the trial court err in directing a verdict upon the question of mental incompetency ?
(3) Was it error to direct a verdict on the question of undue influence ?
The court admitted in evidence a quitclaim deed of the homestead, executed by testatrix the day following the making of the will, conveying her interest in the homestead to her husband, and also permitted the circumstances under which it was made to be shown. It appears that, when testatrix detailed to Judge Hammond the disposition which she desired to make of her property, she informed him that it was her wish that her husband should have her interest in the homestead. The deed transferring the property to them was shown to Judge Hammond, and he, observing that it ran to husband and wife, assumed, without further inspection, that they owned it by the entirety, and he advised that nothing further would be necessary to vest the title in the husband after the death of testatrix. Subsequently this was questioned by the contestant, and Mrs. Markham took the deed to Judge Hammond, whereupon, after an examination, he found that the homestead was conveyed to testatrix and her husband, as tenants in common, and that they were not the owners of it by the entirety. Judge Hammond then suggested that, inasmuch as the will had been made, it would be better to transfer her interest in the homestead by a quitclaim deed, which was at once prepared, the matter explained to testatrix, and she executed it.
Counsel for contestant are very strenuous in their contention that this testimony was not competent. We are unable to agree with them. We think it was competent to show to what extent the testatrix had aided the contestant, whether before or after the making of the will. Beaubien v. Cicotte, 12 Mich. 459; Bush v. Delano, 113 Mich. 321 (71 N. W. 628). It was admissible for another reason. It tended to rebut the inference which was sought to be drawn from the provisions of the will that the contestant had not been dealt fairly with by the testatrix in the disposition of her property. A conveyance of one-half of the homestead to her husband was a part of her plan in disposing of her property, and the one-half interest, according to the testimony, was worth $1,250, and without doubt she would have devised it to him in the will but for the erroneous impression of Judge Hammond. The fact that her interest in the homestead passed to contestant by deed rather than by devise made him no less a recipient of her bounty.
It is claimed by the contestant that the question of.' the mental incompetency of the testatrix should have been submitted to the jury. The proponent called several witnesses to establish the mental competency of the testatrix, and among them were Judge Hammond, who prepared the will; Emma Cole, an old acquaintance and neighbor; Emma Smith, the nurse who cared for her in her last illness; and Dr. Walter Snow, the attending physician. All these witnesses testified that the testatrix was physically weak, but that her . mind seemed clear. The testimony showed that no drug was administered to testatrix which would affect her mind until several days after the will was executed. The nurse testified that “ Mrs. Wood-worth’s mind seemed clear until after we gave her morphine,” and Dr. Snow testified that morphine was not given to her until the last four days of her life.
The contestant was a witness in his own behalf, but he gave no testimony tending to show that testatrix was mentally incapable of making the will. Only one other witness was sworn and testified for contestant, and she was not interrogated upon that subject at all. It is very clear to us that the trial court committed no error in refusing to submit this question to the jury unless the opinion of Janet Cassidy should have been received. Mrs. Cassidy was a neighbor and was invited in to witness the will. She testified on behalf of the proponent. At the conclusion of the cross-examination she was asked by the contestant for her opinion as to the mental competency of the testatrix to make the will. The court refused to allow her to answer, on the ground that she had stated no facts which tended to impeach the will. Contestant claims this was error. The substance of Mrs. Cassidy’s testimony was that she called to see the testatrix the day the. will was made and the day previous, and the testatrix did not recognize her at first nor greet her as she was accustomed to do. She had her eyes closed, and witness was not sure she was not asleep. Afterwards testatrix opened her eyes and recognized her. She also testified that on the day the will was made she heard her sister, Mrs. Markham, talking to the testatrix, and the testatrix lay, apparently, in a stupor. On this occasion she also had her eyes closed, and the witness was not sure whether testatrix was sleeping. The witness related no irrational conversation or extraordinary conduct on the part of the testatrix, which was inconsistent with competency. What she did relate was entirely consistent with the theory that testatrix was sleeping at these times. The testatrix was ill and physically weak, and it would not be expected that she would recognize and greet a neighbor as quickly and cordially as she would when she was well. If she awoke suddenly and saw a neighbor standing at her bedside, and for the moment was unable to tell who she was, but later recognized her, it would furnish no grounds for saying that she was incompetent.
Under the rule established by this court, we think the trial court was right in excluding the opinion of the witness. Prentis v. Bates, 93 Mich. 234 (53 N. W. 153, 17 L. R. A. 494); O’Connor v. Madison, 98 Mich. 183 (57 N. W. 105); Lamb v. Lippincott, 115 Mich. 611 (73 N. W. 887).
Should the question of undue influence have been submitted to the jury ? The testatrix decided during the first week of her illness that she would make a will. Judge Hammond, an old acquaintance, was sent for, and, when he came, she dictated to him the disposition she desired to make of her property. The will was prepared and read over to her, and she stated it was as she desired it. Her sister, Mrs. Markham, was present, helping to care for her, and her brother, J. Scott McConnell, was also present. Both were present at the request of testatrix. The witness Janet Cassidy testified that she heard Mrs. Markham, on the morning that the will was made, say to testatrix that she had better make a will and provide well for George (Woodworth). Mrs. Markham admitted saying this in substance, but gives as a reason that her sister had given her so many instructions as to the distribution of her silverware, wearing apparel, and furniture that she told her that she was afraid she could not remember all the instructions, and that she (testatrix) had better make a will and then there would be no trouble about it. This was a proper suggestion upon the part of Mrs. Markham, and we see no attempt in the suggestion to influence testatrix in favor of any one, unless it was on behalf of contestant himself. Testatrix’s brother and sister may have been in a position to influence her; but there is no proof in the record that they did so or attempted to do so, or that any one else attempted to influence her in the slightest, degree as to a disposition of her property. Something more than this must be shown to carry the question of undue influence to the jury. Undue influence cannot be predicated upon opportunity alone. Severance v. Severance, 90 Mich. 417 (52 N. W. 292). We think the court was right in refusing to submit the question of undue influence to the jury.
The appellee has discussed in his brief the question as to whether the administrator of contestant is a proper party to this appeal. We think the view this court has taken of the case renders that question unimportant.
The judgment of the trial court sustaining the will is affirmed.
Ostrander, Hooker, Blair, and Stone, JJ., concurred. | [
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McAlvay, J.
This case is before this court upon writ of error to- review a judgment obtained by plaintiff for personal injuries received, and property lost, by driving off from a certain bridge in a public highway over a ditch in said township, on a very dark night," through the failure of defendant township to maintain such bridge in a reasonably safe and fit condition for travel, and particularly because no railing or guards were maintained on the bridge.
Early in the morning of the day he was injured, plaintiff, who was 38 years of age, started from his farm in company with his brother-in-law, aged 25 years, and Charles Erickson, of the same age, with his team and wagon to drive a long distance for the purpose of attending an auction sale three miles east of Ravenna village. It was a gentle team, 9 and 10 years old. The near (left-hand) horse was blind. Ravenna was the village where plaintiff did his trading and was a distance of 6£ miles beyond the bridge in question. In going to this sale that morning he had taken this highway and crossed over tbi« bridge. The day was cold and rainy. He remained at the sale until 3 o’clock in the afternoon, when, in company with the two young men mentioned, he started to return. He had purchased 25 chickens at the sale which were in a box in the wagon. He stopped at Ravenna and purchased some groceries to the amount of about #20, and then went to a saloon where the coats of the party were dried by the stove. The weather was cold and it was, part of the time, raining hard. They remained there about an hour and the record indicates that they each had two or three drinks. The testimony is that they did not drink on the way home afterwards. They started from Ravenna about 5 o’clock with the chickens, groceries, a jug of whisky and some beer in the wagon. On account of the cold and rain they from time to time changed drivers during the 6£ miles to the bridge; each of them driving part of the way. At the time they came to the bridge Erickson was driving. His statement is that he was a careful driver; that it was dark; that he kept the road all right until he heard the horses’ feet strike the bridge.
“As I struck the bridge Mr. Priebe says to me: ‘Look out, you are right on the edge of the bridge,’ he says. ‘ Haw over5 (turn to the left). He had no more than said that before we were over on the left-hand side in the ditch.”
The record shows that they could not see the road or the bridge, but could sometimes see the water alongside of the road. The approaches and the bridge are altogether 49 feet in length. The ditch under the bridge is about 18 feet wide with the water 3 feet deep. Side ditches at the north end of the bridge opened into the main ditch. The team fell into the smaller ditch. The wagon was bottom-side up in the main ditch with plaintiff under it; his head just above water. Erickson, by jumping, when they were going over, caught the bank of the ditch and climbed out. He then helped the other man and together they got plaintiff out from under the wagon. Erickson then ran for help to the next house, and when be returned the horses were gotten out. In the accident plaintiff’s arm was broken at the elbow and is stiff. The testimony of the physician who treated him shows that the injury is permanent. Plaintiff had lived in the locality but one month. He testified that he knew the condition of the bridge.
Two errors are assigned and relied upon, as follows:
(1) That the court should have directed a verdict for defendant on the ground of contributory negligence.
(2) That the court should not have permitted the jury to find damages on account of groceries lost, and for doctor’s bill paid because the proofs were too indefinite.
The first proposition is based upon the knowledge of plaintiff of the condition of the bridge for some time before the accident, and the claim that his conduct as shown by his testimony was negligent. It is urged that he did not use even ordinary care, when the law required him with his knowledge of the danger to use extraordinary care. Defendant insists that, because plaintiff did not take some other road home, or, having taken this road, did not get out and go ahead of his team, he was guilty of contributory negligence as a matter of law. We are not prepared to say that there was no question of fact for the jury upon the contributory negligence of plaintiff. In the case of Benedict v. City of Port Huron, 124 Mich. 600 (83 N. W. 614), the latest case cited and relied on by defendant, this court approved the submission of the question of contributory negligence of plaintiff to the jury, in what would appear to be a stronger case in support of the defendant’s contention than the case at bar, where plaintiff’s d.ecedent on his wheel rode into the open draw of a bridge, with which he was perfectly familiar.
The charge of the learned circuit judge in the case at bar was at least as conservative as in the case last cited. He said, among other things, upon the matter of contributory negligence:
“He must satisfy you that he was exercising due care at the time of the alleged injury, and if want of due care on his part or on the part of the driver contributed in any degree to the injury he cannot recover, though it would not have occurred except for the neglect of the township in performing its duty in keeping the bridge reasonably safe and fit for travel. No matter how negligent you may find the township to have been, and no matter how defective you may find the bridge in question to have been, yet if the plaintiff was himself guilty of any negli gence which contributed in any degree to his injury he cannot recover.
“It is the claim of defendant that this plaintiff had knowledge of the defective condition of this bridge, and if you find that he did have knowledge of its defective condition, then the duty devolved upon him to exercise a greater degree of care than he would have been called upon to exercise had he known nothing about the defective condition of the bridge. In other words, no man has a right to put himself in jeopardy, and if he does, he must exercise an amount of care and caution corresponding to the danger which he incurs. And in all cases before a plaintiff is entitled to recover in a case of this character he must have satisfied the jury by a fair preponderance of the evidence in the case that upon the occasion when he received his injury he was exercising due care, and such care as a reasonably prudent and cautious person would have exercised under the same or like circumstances.”
The court then proceeded to instruct the jury what it might consider in determining the case, giving at length and with great care each and every specific item of evidence in the case bearing upon the question, and covering the entire case. No other portion of this charge is questioned. We think that the question was properly submitted to the jury.
The second proposition is of a minor importance. It relates to the groceries lost, and doctor’s services paid. There was evidence in the case that the doctor’s bill was paid; that it was about $5.0; that plaintiff was treated by the doctor for about six weeks. The account was in the doctor’s books, but he had been called to testify without time to get it. The testimony of plaintiff was that he paid about $20 for these groceries. Both witnesses were cross-examined. Both of these items were properly submitted to the jury. We find no error in the case.
The judgment is affirmed.
Ostrander, Hooker, Moore, and Brooke, JJ., concurred. | [
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Blair, J.
This is an action on the case brought to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligent operation of defendant’s street car at a street crossing. After the court had announced his opinion, at the close of the proofs, that plaintiff could not recover, and had begun to instruct the jury to that effect, plaintiff asked leave to submit to a nonsuit. This request was refused and a verdict directed. Afterwards counsel for plaintiff made a motion for a new trial, on the grounds that the court erred in refusing to grant a nonsuit and in directing a verdict. Upon the argument of the motion, defendant’s counsel asked that the verdict be set aside and the motion for a nonsuit granted. Plaintiff’s counsel objected to such order being entered. Thereupon the following action was taken:
“ The Court: You may take this down. In order to grant a new trial this court would have to set aside the verdict in view of the doubt raised by the two cases cited. An order will be entered setting aside the verdict and en'■tering a verdict of nonsuit, provided the costs are paid within 10 days; otherwise the same verdict will stand.
“And thereafter counsel for plaintiff appeared and asked that the order be amended so as to provide that the costs be paid within 30 days, which amendment was granted, and subsequently on the 3d day of November, the following order was entered: * * *
“Upon hearing of the motion for a new trial on the part of the plaintiff in this cause, and upon consideration thereof and argument of counsel thereon, it is ordered that the said motion for new trial be denied, provided, however, that the said plaintiff shall have the right upon payment within 10 days from this date of the taxed costs of the defendant herein to enter judgment of nonsuit in this court; and
“ It is further ordered that upon default of the payment of said taxed costs within the time mentioned, and upon failure to enter judgment of nonsuit as above provided, there shall thereupon be entered judgment upon verdict of the jury heretofore rendered in favor of the defendant of no cause of action.”
The plaintiff was entitled to submit to a nonsuit at any time before the jury had gone from the jury box to deliberate upon their verdict. Cir. Ct. Rules 37 a, 34 d; Deneen v. Railway Co., 150 Mich. 235 (113 N. W. 1126). However, the court having granted the right to a nonsuit, even if plaintiff was technically entitled to an order granting a new trial, she waived her right to object to the order by procuring its amendment extending the time for 30 days.
We are satisfied that plaintiff was not entitled to recover upon this record, and that the court properly directed a verdict, so far as the evidence was concerned. The accident happened in daylight on a stormy day with snow, sleet, and rain at intervals. Plaintiff was holding her umbrella close to her to protect herself from the sleet and towards the west. As plaintiff, going north on Farrar street, stepped off the curb onto Grratiot avenue, a car passed going east.
“When she stopped within a few feet of the track, she looked out from behind her umbrella westward to see if another car were coming. The sleet struck her in the eyes, interfering with her sight; but she thought she could see well enough to make sure there was no car coming. Observing none, and hearing no warning from any, she started on to cross the first pair of tracks, turning to look eastward for a west-bound car that might be coming upon the second pair of tracks. She had taken more than two steps, and was just upon the first track, when she saw the fender of an east-bound car in front of her. She tried to dodge back, but before she could do so was struck by the corner of the vestibule and thrown to the pavement.”
Plaintiff testified:
“Q. Now, after you looked and had the sleet in your eyes, you advanced a step and was struck by the car ?
“A. No, sir; I had looked a ways before I got to the track, and then started to go across, or I started on, I could not see, I did not see no car, I started on.
“Q. The reason you could not see was because you had this sudden gust and sleet ?
‘‘A. Yes, sir.
“Q. That is the reason you could not see ?
“A. Yes, sir. * * *
“Q. You gave up a car coming from the west when you were farther back ? ,
“A. I was looking; I could not see towards the west.
“Q. You could not see because your eyes were blinded ?
“A. Yes, sir.
“Q. Farther back?
"A. Yes, sir.
CiQ. You could not see because your eyes were blinded ?
“A. Yes, sir. I started on. I had given up the other car.”
If plaintiff could not see because of the sudden gust blowing the sleet in her eyes, she should have awaited the cessation of the gust, and it was negligence on her part to proceed to cross, relying upon such a view.
The judgment is affirmed.
Bird, C. J., and McAlvay, Brooke, and Stone, JJ., concurred. | [
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Moore, J.
This is a suit to obtain a judicial construction of a provision in the last will of Mary E. Sutton, deceased. The testatrix drew the will herself. Her husband was dead. Her daughters were both married and had good homes. Mrs. Sutton had some ailment and was in the habit of going to Dr. Jones’ Sanitarium at Adrian for treatment. After her death, which occurred December 30, 1906, her will was admitted to probate. The complainants, her daughters, filed this bill. Clause 6 of the will is as follows:
“ Having been at the Sanitarium many times and knowing personally the amount of charity work done in connection with his business, and feeling the importance of this work, I hereby give and bequeath to William H. Jones the sum of two thousand dollars ($3,000) or four shares of Calumet & Hecla copper stock, to be used as he sees best for carrying on the work of relieving suffering.”
The court below considered the bequest as an absolute gift to Dr. Jones, and held that the testatrix did not intend to create a trust fund of the said bequest. In his opinion occurs the following:
“It was conceded on the argument by counsel for the defendant Jones that if the language in said paragraph can be interpreted and construed as creating a trust that it is void, and cannot be sustained, for the reason that the beneficiaries of the bequest are too indefinite and uncertain, being practically afflicted and suffering humanity.
“ I think Mrs. Sutton had a kindly heart, easily moved and affected by human suffering, particularly the afflictions of the poor and indigent, and that she, when at the sanitarium, had noted the amount of charity extended there to the needy, and, being pleased with and feeling very friendly towards Dr. Jones by reason thereof, gave him absolutely $3,000 or four shares of Calumet & Hecla copper stock to encourage the continuance of the work then being done by him in behalf of and for the relief of the needy and afflicted poor.
“ It would be clear as to the character of the legacy if the words of gift stood alone. They would constitute an absolute gift of the legacy to Dr. Jones, and the language which precedes them was, I think, intended by the testatrix to state, express, and declare her reason, motive, and purpose in making an absolute gift of the legacy to Dr. Jones, and the language which follows them I do not think can be construed as cutting down or affecting the absolute character of the gift which she had previously made to him. They are expressions of faith and confidence on her part that the good work in which she found the doctor engaged would be carried on by him in the future as she had observed it in the past, and she doubtless expected that he would use the money she was giving him in relieving suffering, but there is nothing in the clause which can be construed as indicating an intention on the part of the testatrix to make it obligatory on him to do so, and therefore the features of a precatory trust are wanting.”
There is not very much conflict as to the law in this State, though counsel have cited many authorities. The decisions made in this State which bear upon the questions involved are Hopkins v. Crossley, 132 Mich. 612 (96 N. W. 499); Trustees of Hillsdale College v. Wood, 145 Mich. 257 (108 N. W. 675); Abrey v. Duffield, 149 Mich. 348 (112 N. W. 936); and McPherson v. Byrne, 155 Mich. 338 (118 N. W. 985), and the cases cited in the opinions filed in those cases.
The important question is What is the meaning of the language used by Mrs. Sutton? Was she interested in Dr. Jones as an individual, or was it the charitable work he was doing which she thought was important? Was the money to be used by him for his own personal use, or was it to be used to carry on the charitable work of relieving suffering humanity ? To ask these questions is to answer them. It is clear the gift could be used only for the purpose of relieving suffering, if the will of the testator was to be given effect. For this reason, the gift must fail under the authorities cited. It is said the gift may be saved by reason of Act No. 122 of the Public Acts of 1907. It is not necessary to construe the provisions of that act, for the reason that it did not go into effect until nine months after the death of Mrs. Sutton, and the will must speak from her death.
The decree of the court below is reversed, with costs, and one may be entered here in accordance with this opinion. .
Ostrander, Hooker, McAlvay, and Brooke, JJ., concurred. | [
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Blair, J.
This is an action of assumpsit to recover from the defendant as successor of Lindsley Bros, a balance of the purchase price of certain cedar posts and poles claimed to be due to plaintiffs. Several days prior to May 8, 1903, plaintiffs entered into an executory contract with the Michigan Cedar & Lumber Company of Menominee, Mich., to sell to it their entire output of posts and poles. The contract, among other provisions specifying prices, etc., contained the following:
“Terms of payment to be as follows: A payment of $2,500.00 to be made on or before May 6th in negotiable paper, which is backed by the Lindsley Bros. Co., of Menominee, Mich. The balance of the purchase price to be paid upon receipt of invoices for each car, in the sum of 75 per cent, for each invoice or car when loaded, in cashless 2 per cent., and the balance of 25 per cent, to be paid 60 days from same date, the payments of cash not to begin until said Michigan Cedar & Lbr. Co. have re ceived enough material to cover the first payment above mentioned of $2,500.00, which payment at this date or writing has been paid and accepted by yourselves. The poles are to be inspected on grounds at once by the Michigan Cedar & Lbr. Co., according to the N. W. W. Cedar Men’s Association inspection rules.”
The Michigan Cedar & Lumber Company was under the control and management of A. L. Lindsley, a brother of George L. Lindsley. George L. Lindsley was president, and his brother E. A. Lindsley was secretary and treasurer, of the Lindsley Bros. Co., but neither of them, so far as this record shows, was connected with the Cedar Company. On or about May 8,1903, two noteá for $1,250 each, due, respectively, in 60 and 90 days, were executed and delivered to plaintiffs by the Cedar Company. These notes were indorsed before delivery by Lindsley Bros. Co., were at once discounted at a bank, the cash paid to plaintiffs and the amount credited upon their books to the Cedar Company. After the making of the contract the Cedar Company directed the plaintiffs by letter to ship the poles to the Lindsley Bros. Co. On May 14, 1903, plaintiffs shipped to Lindsley Bros. Co. poles to the amount of $3,606.60, on June 9, 1903, poles to the amount of $398.05, and on July 11, 1903, poles to the amount of $134.30. With the exception of a later invoice of $27, the above items comprise the shipments to Lindsley Bros. Co. of the poles covered by the contract. The posts covered by the contract were shipped to the Cedar Company, and plaintiffs kept separate accounts of the poles and posts. Up to and including May 14, 1903, plaintiffs had shipped to the Cedar Company posts to the amount of $513.12. September 1, 1903, the Cedar Company wrote the following letter, which was received by plaintiffs:
“ Enclosed please find check for $446.32 to apply on our account; also an acceptance for 60 days amounting to $526.83 which we trust you will find acceptable, as you desired good payment the first of this month. We also hope that you have written the Lindsley Bros. Co. and they have helped you out in some manner. When you first began shipping this material, we wrote you to invoice all poles to the Lindsley Bros. Co., and this of course carries the demand on them for the payment of the same when due, which we trust you have, less $1,250 on one note which they have paid, we remain,” etc.
On September 14, 1903, Lindsley Bros. Co. sent the following statement, which was received by plaintiffs:
Harstad & Labre, Bark River, Mich.
In Account with
Lindsley Brothers Company,
Dealers in Cedar Products.
Interest at 7 per cent, charged on accounts after due. Exchange and express charges on remittance must be prepaid.
1903.
May 19 Insp. Report No. 1179...................$3,606 60
June 9 “ “ 1241-1242.............. 398 05
July 14 “ “ “ 1264------------------- 134 30
Aug. 15 Cr. Memo 8-15 31567-45191............. 1 00
Aug. 8 M. C. & L. Co.’s note paid by us _________________$1,250 00
Balance............ 2,889 95
$4,139 95 $4,139 95
Balance____________$2,889 95
We are sending you this for comparison.
Very truly yours,
Lindsley Bros. Co.
On or about October 14, 1903, plaintiffs gave to Lindsley Bros. Company the following statement:
M. Lindsley Bros. Co., To Harstad & Labre, Dr.
Dealers in Dry Goods, Clothing, Hats, Caps, Boots, Shoes, Groceries, Hardware and Implements, Cedar Products, and Cordwood.
Bark River, Mich. Sept. 14. Your stmt.............................$2,889 95
Our invoice 9-7 " 35............................ 27 00
$2,916 95
11 24. By 60 ds. note $600
Oct. 14. By 60 ds. note 1,500 2,100 00
$816 95
Some time in October, 1903, plaintiff Labre went to Menominee and talked with E. A. Lindsley about their statement. He testified :
“ Q. You may state whether or not you made any objection to that $1,250 credit at that time ?
“A. I just mentioned it. * * *
“Q. What did you say to him and what did he say to you about that there ?
“A. Isays, ‘ I don’t think this note ought to be charged to me,’ so he says, ‘We paid it, and it is charged,’ sol didn’t do anything more about it; they were ahead of me three or four thousand dollars. After that I again went to Menominee. I think it was a month later. I saw Mr. George Lindsley himself in the office. At that time the Michigan Cedar & Lumber Company was in the same office with defendant.
“Q. What did you go there for at that time ?
“A. The account was running behind, and I told George Lindsley I wanted some money; I told him that they were not living up to the contract at all; the account was way past due and the stuff wasn’t moving as it ought to be. To that George said at that time he would take over the management of the Michigan Cedar & Lumber Company himself and see that everything went through all right and that everybody got their money. He and A. L. Lindsley were in there together. A. L. Lindsley was a member of the Michigan Cedar 8c Lumber Company. I understand George Lindsley was president of the Lindsley Brothers Company. At that time I took some notes from the Michigan Cedar & Lumber
Company, and some of them were renewed after that. ‡ ‡ ‡
“Mr. Myall: Why did you take these notes ?
“Mr. Labre: Mr. Lindsley told me that he would take the management of the company and see that everything pulled through all right and that everybody was paid.
“The Court: The question is, Is that the reason you took these notes of the Cedar Company ?
“Mr. Labre: Yes, sir.
“ Whereupon the court ruled to permit the answer to stand, but not for the purpose of showing any authority of the company, and an exception was duly given to the defendant. * * *
“ Myself nor any member of my firm never authorized Lindsley Bros. Co. to apply that note on their account. There has never been anything said by them about applying this note on this account, or that I had authorized its application. I never received the $1,250 from Lindsley Bros. Co. except in the manner they indicate here by their paying that note.”
The balance due, according to plaintiffs’ statement to Lindsley Bros. Co., has been fully paid by that company. Plaintiffs also gave a statement to the Cedar Company, crediting it with one of the $1,250 notes and showing a balance due for which plaintiffs accepted three notes, the payment of which would have completely discharged the contract. In the spring of 1904 the Cedar Company went into bankruptcy, and plaintiffs filed the three notes as claims against its estate, but afterwards, on advice of counsel, withdrew their claim and instituted the present suit against defendant.
Mr. George L. Lindsley testified:
“Q. Do you remember the transaction by which you received some poles from Harstad & Labre, in 1903 ?
“A. Well, they shipped some on a contract or a sale the Michigan Cedar & Lumber Co. made to us, yes. * * * We had nothing to do with Harstad & Labre in the purchase of these poles.
ceQ. From whom did you buy the poles?
“A. Michigan Cedar & Lumber Company. * * * Afterwards I made payments on these poles. I made payments in the way which I did for the convenience of bookkeeping, and so that the matter of payments would go through Harstad & Labre; and we didn’t care to have them go around through the Michigan Cedar & Lumber Co., but through Harstad & Labre. We thought it simpler in bookkeeping, and otherwise. * * *
“Q. You may state when the arrangement was made between you and the Cedar Company.
“A. When the shipment commenced — that is, when we commenced, to make payments and that is when the arrangement was made.
“Q. When the shipments commenced. That was under the contract ?
“A. Under the contract.”
At the close of the proofs defendant’s counsel moved for an instructed verdict in its favor. We are of the opinion that this motion was well founded. It is undisputed that the original contract was between plaintiffs and the Cedar Company, and that, originally, defendant contracted for the poles with the Cedar Company. It is further undisputed that the plaintiffs shipped the poles to defendant in compliance with the instructions of the Cedar Company. The contract provided for an advance payment of $2,500 and plaintiffs were paid $2,500 by the Cedar Company before they shipped a pole or a post, but by the contract they were also bound to ship the equivalent of this sum in poles or posts before they could entitle themselves to the subsequent payments. The first shipments of poles and posts, therefore, up to the amount of $2,500 were paid for in advance by the Cedar Company, belonged to it and were subject to its disposal. At the close of May 1 i, 1903, plaintiffs had shipped poles of the contract value of $3,606.60 and posts of the value of $513.12. Deducting the $513.12, there remained $1,986.88 worth of poles actually paid for by the Cedar Company, and sold by it to the defendant company, and as to which the plaintiffs had no claim whatever, against the defendant or the Cedar Company. It turned out, however, that when the second note for $1,250 fell due August 8, 1903, the defendant, either because of its legal obligation or of some arrangement with the Cedar Company, paid the note and was, as against the Cedar Company, its vendor, legally entitled to credit therefor on the purchase price of the poles paid for by the Cedar Company. So far as the plaintiffs were concerned, having received their money on the notes, it was no concern of theirs how the notes were afterwards paid, neither was it any concern of theirs what was done with the cedar which the notes paid for, after they had delivered it in compliance with their contract. All that was done by the subsequent arrangement. of the parties was to allow to the defendant the credit to which it was legally entitled.
We are also of the opinion that an account stated be tween the parties was conclusively established. That there was a striking of balances between the several parties, an acceptance of notes from the Cedar Company and the defendant for the balances struck, is undisputed, and we think the evidence is equally undisputed that no fraud was practiced upon the plaintiffs and that they fully understood the facts and were not laboring under any mistake, either of fact or of law.
The judgment is reversed, and a new trial ordered.
Ostrander, Hooker, Moore, and McAlvay, JJ., concurred. | [
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Brooke, J.
(after stating the facts). Plaintiff assigns error upon the charge of the court, which was in part as follows:
“With reference to the claims of the- parties, you are instructed that the burden is upon the plaintiff to convince you by a fair preponderance of evidence that the words complained of were false, in fact, and defamatory in character.
' ‘ To recover actual damages he must also convince you by a fair preponderance of the evidence that the plaintiff has suffered injury to his good name, health, feelings, and that those injuries resulted directly from thd publication of the article in the Herald of May 8th, 1907. * * *
“You are instructed that libel is a malicious defamation expressed in writing or printing, tending to impeach the honesty, integrity, or reputation of another.
“You are also instructed that printed words, falsely charging another with the commission of larceny, are actionable per se. That is, if it appears from the whole record that the words complained of charge plaintiff with being a thief or with committing larceny of the purse and property in question, and that such charge is false in fact and wholly unjustified by the defendant, then the law presumes that he has suffered at least nominal damages, that is to say, at least six cents damages.
“As I have explained to you, to determine whether larceny was in fact committed by Schattler and wife in. securing possession of the pocketbook and contents, * * * Mrs. Schattler had a right to take possession of the property to return it to Mrs. O’Brien, if she found her, and if she did not find her, then she had a right to turn it over to the conductor in charge of the train or the station agent.
“It is shown by undisputed evidence, that the conductor was present, and aided in the search for the property within five minutes from the time it had been left. Mrs. Schattler knew where he was.
“If she made search for Mrs. O’Brien, and could not find her, it was her duty to turn the property over to the conductor or the agent.
“ She would not be a trespasser in taking charge of the property and turning it over to either of these, but when she failed to do this, and took the property away from the place where Mrs. O’Brien would have recovered it, taking it entirely away from the train and away from the conductor or agent, she then became a trespasser.
“ Now, gentlemen, this is all-important as bearing upon the question as to when the intent to appropriate the property was formed. Under such circumstances as shown by the evidence, if you find that Mrs. Schattler took the property off the seat and off the train with an honest intention to find the owner, and took it away with that purpose and without any intention to commit larceny at the time when she took it away to convert it to her own use, but at some subsequent time formed the intention to keep the property as her own, she would become guilty of larceny at the time she formed the intention to appropriate the property, if she did so, whenever that time might have been.
“You are further instructed, that by virtue of the statutes in this State, there is no distinction between principals and accessories in the commission of crime. That is to say, if one aids, abets, or in any manner directly takes part in the commission of the offense of larceny, evsn th'ough he does not actually take the goods into custody himself, he becomes equally guilty with the principal.
“ If in this case you are convinced by a fair preponderance of the evidence, that Mrs. Schattler committed the crime of larceny, and you also find by a fair preponderance of evidence that her husband, the plaintiff, aided and abetted the commission of the crime, and aided in the concealment of the facts in keeping the property away from the owner when she was asked to return it, then you should find that he was an accessory and equally guilty with his wife, whether he ever took the property into his possession at all or not.
“Of course you will understand that it is for you to determine the facts as to the conduct of the parties, and whether their conduct amounts to larceny under all the facts. In doing this you will determine the facts in accordance with these principles of law which I give you.
“As an essential element of the crime of larceny, and the aiding and abetting thereof, an intent on the part of Mrs. Schattler and her husband to commit these acts must appear.
“ What their actual intent was, you are to determine from the facts and circumstances, and what they did and said in connection with the property.
“You are also instructed, that if you believe from all the proofs, that Mrs. Schattler took possession of the property with an honest intention, and continued to hold it with honest intent to return it to the owner, and that her husband never formed an intent to aid her and keep the property away from the owner by concealing their possession of it, then neither would be guilty of larceny. But it is impossible to reach the recesses of the human mind to ascertain the true intent; you can only determine what it is by conduct.
“You are to consider what these people did in their attempts to find Mrs. O’Brien, or their failure to attempt to find her. Take into consideration their statements to the officers and others, their attempts in returning the property, and if from all of these, you determine that at any time Mrs. Schattler conceived the intent to retain this property as her own, and that Schattler aided and abetted her, as I have explained, then the truth of the defendant’s charge, that Schattler was a thief, is established. * * *
“If, as a matter of fact, you shall find the defendant has not shown that it was justified in using false and defamatory language, the effect of the request to retract, the other articles in the Daily Herald and the language in the article itself pertaining to the reward are to be considered to determine the degree of malice accompanying the publication of the false and defamatory statements, if they were such. Of course, if you determine as a fact that defendant under the circumstances, as they appear from the proofs, had a right to use the language complained of, all questions of malice and the effect of the notice to retract, and the other publications are wholly eliminated from the case. If the defendant was justified in printing what was printed, it is immaterial what the motives were which prompted the publication. * * *
4 4As I have explained, if the charges in substance, that the defendant was a thief, were not justified and were in fact false, then the law presumes that damages have resulted.
• 44 General damages will follow in such a case, and they are those damages which the law will presume to be natural and probable consequences of the defamatory words as are shown in the proof connected with the effect that they may have had, if any, upon the plaintiff’s character, health and feelings. * * * And in connection with the question of actual damages, you are to consider whether or not the charges made in the language were maliciously used, and if so, you may consider this fact as an element in awarding the actual damages.
44 In connection with this question of damages, you are also instructed, that if the defendant has failed to fully justify the publication of the language complained of, yet you may take defendant’s good faith into consideration in mitigation of damages.
44 That is to say, if the circumstances attending the loss of the pocketbook, and the conduct of Schattler and his wife, and the arrest of the plaintiff by the officers, all furnished such information as to give a reasonably prudent man a reason for actually concluding that the parties were guilty as charged in the article of May 8th, then this is to be regarded by you as evidence of good faith on the part of the defendant.
44 If you find the defendant acted in good faith in applying the word 4 thief ’ and like allegations of that character, and under the circumstances, honestly believing that he was in fact a thief, then you should consider these facts in the matter of mitigating or lessening or diminishing the actual damages.
44 It is a matter for your determination as to what ex tent mitigation may extend, even to the extent of diminishing damages to a mere nominal sum.
“Further in this connection with this question of damages, you are to take into consideration what effect, if any, the reading of the article of the Times had upon the plaintiff.
“ Proof has been introduced to show that an article referring to the arrest and so forth contained in the Times was read to him before the article in the Daily Herald of May 8th had reached him. Evidence has also been given as to the effect that the article in the Daily Herald had upon the plaintiff’s feelings and health.
“You are to take into consideration whether the facts set up in the article contained in the Times was a cause for such injuries as he complained of. If you find this to be a fact, that the article in the Times had a natural and' probable effect upon his feelings and health as he now complains of, then this should be considered as a fact in determining whether the injuries complained of were actually traceable to the Daily Herald. * * *
“Now, as to your verdict. First, if you find that no justification has been shown by the defendant, then your verdict should be for the plaintiff, for at least nominal damages of six cents, or in such actual damages as the proofs and these instructions warrant. Second, if you find that defendant ha3 justified the publication of the words complained of, as I have explained, then your verdict should be not guilty.
“ If the intent to commit the larceny was once formed while the property was in the possession of the plaintiff or his wife, as I have explained, then the mere fact of the return of the property does not remove the fact that larceny was then committed; it would not cure it.
“Mr. Schell: It is my memory that our declaration does not aver injury to health as special damages-in connection with what the court has said in regard to health. I think you should instruct the jury that they should take into consideration, that if this article had any injury or ill effect upon his health that the only damage they could award therefor would be such as could be awarded because of the injury, or the additional injury to his feelings on account of loss of his health.
“The Court: Well, strike out all reference to the health then, that is all there is to that.
“Mr. Walsh: I take an exception to this because of the fact that the charge has been given before plaintiff’s counsel wants it withdrawn.
“The Court: Counsel calls my attention to the claim that there is no claim of damages for direct injury to health; it is on their request I withdraw from your consideration all question of damages on account of injuries to health, leaving the rest of the charge as to the injury to feelings and reputation standing.”
At 1:15, after being out 2-J- hours, the jury returned into court by direction of the court, when the following took place:
“ The Court: Gentlemen, I have recalled you for the purpose of correcting a statement I have inadvertently made to you in connection with the burden of proof. This is the section as I gave it to you •
“‘"With respect to the claims of the parties, you are instructed that the burden is upon the plaintiff to convince you by a fair preponderance of evidence that the words complained of were false in fact and defamatory in character.’
“You notice that I said that the plaintiff must show the defamatory words were false in fact and defamatory in character.
“I now say to you, that the words being actionable per se, they are presumed to be false. This has only to do with the question of the proof of those words.
“I correctly stated the rule in other portions of the charge.
“I also call your attention to another section of the charge, in which the same inadvertence appears. That is the section of the charge:
“ ‘ That is to say, if it appears from the whole record that the words complained of charges plaintiff with being a thief or with committing larceny of the purse and property in question, and that such charge is false in fact and wholly unjustified by the defendant, then the law presumes that he has suffered at least nominal damages, that is, at least six cents.’
“ I intended that this should read as follows:
“ ‘ That is to say, that if it appears from the whole record that the words complained of charges plaintiff with being a thief or committing larceny of the purse and property in question, and that such charge is not justified by the defendant by proof of the truth thereof by a fair preponderance of the evidence, then the law presumes that the plaintiff has suffered nominal damages, that is, at least six cents.’
“As I have explained, this change has solely to do with the burden of proof as to the truth or falsity of the words. It in no manner changes or affects the rules as to the defendant’s justification or as to the rules and question of damages exactly as I have given them to you. All of the remaining rules and instructions I have given are to remain intact.”
It will be noted that at the outset the jury were instructed that the burden of proof was upon the plaintiff to show that the words complained of were false in fact and defamatory in character, and that to recover actual damages for injury to reputation and feelings, such damages must be proven by plaintiff by a fair preponderance of the evidence. This statement is not the law in any particular. The words complained of charged the plaintiff with larceny. They were plainly libelous per se. They carried with them the presumption of their falsity, and unless proven true in substance and in fact by defendant, the plaintiff, without proof of injury, had a right to recover the actual damages to his reputation and feelings, which the law presumes will flow from the commission of the act. This erroneous impression of the rights and liabilities of the parties found lodgment in the minds of the jurors, and was not corrected during the entire charge. Two and one-half hours after retirement, the jurors were called into court, and an attempt made to cure the error by reading two detached paragraphs of the charge, and there rereading them in a modified form. We are of opinion that, so far from correcting the error made, the action of the court, in thus reading these two sections without the context, may well be supposed to have confused, rather than to have clarified, the minds of the jurors as to the plaintiff’s rights.
The plaintiff offered to show the conversation between himself and his wife about the purse, on the way from the station to the post office, as a verbal act, bearing upon the question of intent, and part of the res gestee. We think this testimony was admissible. Dunbar v. McGill, 69 Mich. 297 (37 N. W. 285); Wright v. State, 10 Tex. App. 476; 3 Wigmore on Evidence, § 1772 et seq.
Testimony of the prosecuting attorney was admitted as to why the case against plaintiff was dropped; the plaintiff’s ill health being assigned by him as the reason. This testimony was incompetent, and, in our opinion, prejudicial to plaintiff’s rights, as it may well have caused the jury to believe that the officer had discontinued the case on account of the plaintiff’s sickness, while still believing him to be guilty.
The important question for the determination of the jury, under the pleadings, was whether or not the plaintiff, at any time while the purse was in the possession of himself or his wife, had formed the intent to feloniously appropriate it to his own use, or to aid and abet his wife to so appropriate it. The jury were instructed to determine this intent “from the facts and circumstances, and what they did and said in connection with the property;” yet the court excluded testimony of what they said, not alone to each other, but to Mrs. Shannon. This testimony, likewise, should have been admitted.
The court admitted, over plaintiff’s objection, evidence of the publication in the ‘c Daily Times ” of two articles concerning the arrest of plaintiff. The publications were made by the “Times” either contemporaneously with, or later than, the libel complained of. They were inadmissible for any purpose. See 25 Cyc. p. 506, and authorities there collected.
Particular attention is directed to the case of Palmer v. Publishing Co., 31 App. Div. (N. Y.) 210 (52 N. Y. Supp. 539), and cases cited. There that court said:
“When several persons unite in the publication of one libel, a tort is committed by each one of them, for which he severally is liable to the plaintiff, and the plaintiff is entitled to a judgment against each one for all the damages which he suffers, by reason of the libel. 13 Am. & Eng. Enc. Law (1st Ed.), p. 372. It is quite true, that he is entitled to but one satisfaction, and when one of the judgments has been paid, the collection of the others will foe restrained. Breslin v. Peck, 38 Hun (N. Y.), 623. But until he has had one satisfaction, he is entitled to maintain as many actions for the same libel as there are defendants who have been engaged in publishing it. A fortiori, where a libel had been published against the plaintiff by different persons at different times, he is entitled, not only to pursue each publisher, but to recover whatever damages the jury may think that each publication may have caused him. Each libel is a separate and distinct tort, and each person who sees fit to publish it is separately liable to the plaintiff for whatever damages may be fairly said to accrue. If 100 persons at 100 different places make 100 separate publications of a libel in 100 different newspapers, the fact that this simultaneous action of all of them has ruined the plaintiff’s character is .no reason why one of them, when sued for it, should shelter himself behind the acts of the other 99, and say that 99 /100 of the plaintiff’s character was ruined by the others, and, therefore, he is liable for only 1/100 part of the damage. The true rule is, and must be, that whoever publishes a libel, publishes it at his peril, and he cannot mitigate his damages, because some other reckless or evil-disposed person has incurred the same liability that he has for the same story.”
The charge of the court, to the effect that the good faith of defendant in using the word “thief” in the libel complained of, should, if found by the jury, be considered as mitigating the actual damages, is clearly erroneous. If defendant, under its plea of justification, failed to prove that plaintiff was a thief, then its good or bad faith in publishing the libel could have no possible bearing upon plaintiff’s right to collect actual damages. Whittemore v. Weiss, 33 Mich. 348; Austin v. Hyndman, 119 Mich. 615 (78 N. W. 663); Smurthwaite v. Publishing Co., 124 Mich. 377 (83 N. W. 116); 25 Cyc. pp. 372 and 420. Actual damages may be increased by reason of the malice of the defendant, because .plaintiff’s injury to feelings is greater when he suffers from a wrong wantonly inflicted, than when he suffers from one inflicted in good faith, but in no case can defendant’s good faith mitigate or lessen the damages to reputation or feelings, which plaintiff actually does suffer, as a result of the libelous publication. Obviously, plaintiff could only be guilty of larceny, if he himself formed the intent to feloniously appropriate the purse, or aided and abetted his wife in so appropriating it, after she had communicated to him her intent to do so. Her secret resolve to steal the purse and its contents, if inferable from her conduct and words, would have no tendency to prove guilt on the part of the plaintiff.
Voluminous requests to charge were tendered on behalf of the plaintiff. These were disregarded by the court, but covered in part by the general charge. So far as they correctly stated the law, and were so covered, there is no error. In re Morse’s Estate, 146 Mich. 463 (109 N. W. 858). We are, however, clearly of the opinion, that, taken as a whole, the charge failed to clearly and fairly present to the jury the conflicting claims of the parties and the legal principles applicable thereto.
For the errors pointed out the judgment is reversed, and a new trial ordered.
Ostrander, Moore, and McAlvay, JJ., concurred.
Hooker, J. I concur in the reversal of this cause on all grounds but one. I am not certain that the testimony of the prosecuting attorney was not properly admitted. | [
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Moore, J.
From a judgment obtained by plaintiff for injuries received while she was a passenger on one of the cars of defendant, the case is brought here by writ of error. The record shows plaintiff was injured by a derailed car colliding with a building, throwing her from her seat. There is testimony to the effect that the car was running about 30 miles an hour; it left the broken track on Michigan avenue, ran across the pavement, over the curb, against and breaking off a sound telegraph pole, across the sidewalk, through a brick wall, and several feet into the building, throwing the rear end of the car around and the car over on its side, tearing its roof off and smashing the car. The shock rendered plaintiff, unconscious, and she was in that condition when removed from the wreck.
It is claimed by appellant that the declaration is insufficient to admit testimony of uterine trouble. The sufficiency of the declaration to permit this testimony is the only question presented by the brief. So much of the declaration as is necessary to present the issue reads as follows:
“That plaintiff’s body, back, limbs, arms, sides, and chest were then thereby greatly bruised, mangled, and lacerated and plaintiff’s right shoulder was dislocated, and she was hurt internally, and her right side was greatly bruised and injured, and also one of her hips was bruised and wounded, and plaintiff thereby suffered great and excruciating pain of body and mind, and by reason of the premises the said plaintiff’s nervous system was thereby greatly shocked, deranged and weakened, and by reason of the premises the said plaintiff then and there suffered severe and permanent internal injuries and was confined to her bed for a long space of time, * * * and by reason of the premises this plaintiff then and there became, and still is, and during the remainder of her natural life will be, * * * permanently disabled and injured.”
The averments of the declaration permitted the admission of the testimony under the following authorities: Leslie v. Traction Co., 134 Mich. 518 (96 N. W. 580), and the many cases therein cited; Renders v. Railroad Co., 144 Mich. 387 (108 N. W. 368); Groat v. Railway, 153 Mich. 165 (116 N. W. 1081).
Judgment is affirmed.
Ostrander, Hooker, MoAlyay, and Brooke, JJ., concurred. | [
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Ostrander, J.
The complainant has for more than 30 years conducted a general banking business in the city of Detroit under the name and style “Michigan Savings Bank,” its corporate name being “Michigan Savings Bank of Detroit, Mich.” The defendant bank has also conducted a general banking business in the same city since the year 1884, its corporate name being “The Dime Savings Bank of Detroit, Mich.” The Dime Savings Bank acquired the business of the Citizens’ Savings Bank of the same city and thereupon elected and determined to change its name to “The Bank of Michigan,” and for that purpose resolved to amend its articles of association. This action was taken, notwithstanding protests from officers of the Michigan Savings Bank, which, in consequence, filed its bill in the circuit court for the county of Wayne, in chancery, against the Dime Savings Bank, the county clerk of Wayne county, the secretary of State and the commissioner of banking, praying that the defendant bank be enjoined from using the name “The Bank of Michigan ” or any other name similar in any material respect to the name of defendant, from executing a certificate setting forth that it has amended its articles of association by changing its corporate name as aforesaid, and ■from recording the same either in the office of the county clerk, the commissioner of banking, or the secretary of State, and that the attempted action of its stockholders with reference to the change of its corporate name be declared to be of no effect. There were appropriate prayers for relief as to the other defendants. The bill was answered by the defendant bank, testimony was taken, and a decree was entered in accordance with the prayer of the bill. The Dime Savings Bank has appealed.
It is not claimed that the defendant bank has any fraudulent purpose — a design to mislead the public or to injure complainant — in changing its corporate name. No director of one bank is also a director of the other, no contract relations between the two institutions are relied upon by the complainant, and defendant bank is not estopped to use the name. But it is claimed that if two banks, with offices upon the same street, in the same city, use names so similar, confusion and injury will result; that the statute forbids the defendant bank to assume a name so similar to that of complainant bank, and that equitable principles support the decree appealed from.
The banking law, 2 Comp. Laws, § 6091, requires persons associating to organize a bank to specify in the articles of association, among other things,—
“ The name assumed by such bank, which shall be, in no material respect, similar to the name of any other bank organized under the laws of this State.”
So Act No. 232, Pub. Acts 1903, in section 2 thereof, relating to names to be assumed by corporations, contains the proviso that—
“No name shall be assumed already in use by any other existing corporation of this State, or corporation lawfully carrying on business in this State, or so nearly similar as to lead to uncertainty or confusion.”
Courts of equity are frequently called upon to remedy conditions which grow out of the use by a corporation of a name similar to the name of another corporation, carrying on a business of the same character. In such cases it is usually, if not always, true that relief is granted because experience has demonstrated that the public is misled, and the corporation first established is defrauded on account of the similarity of the names. We assume that the statutes referred to were intended to prevent, to some extent, the conditions which in such cases, when they arise, make a resort to the courts necessary. In this view of the legislation, in its enforcement by the courts as a preventive measure, it is necessary to consider, in advance of a demonstration based upon experience, and in a case where neither corporation has, or can acquire, the general right to an exclusive use of the words employed in the name, whether it is likely that the public will be misled, and whether the complaining corporation is likely to be injured. It is evident that experience, not in the particular case, but in other cases, must still be employed in determining the fact, and that mere conjecture that some confusion may result is not ground for granting equitable relief. We may also consider that if relief is refused and conjecture is in actual experience made fact, the complaining corporation may have its remedy.
We are not impressed that the testimony introduced on the part of complainant supports even the conjecture that the public, using ordinary care, will be misled by the alleged similarity of the names of these corporations. If it is true, and we assume that it is, that the public is apt to sieze upon some part of the corporate name and use it as descriptive of the whole and as designating the particular bank, we may also assume that the words “ Michigan Savings” in one case, and “the Michigan” in the other, will be apt to be used and will be properly and sufficiently distinctive. It is the general rule that when they are properly descriptive, the use of geographical words in a business name will not be enjoined, in the absence of estoppel or of actual fraud, or public misleading. In enforcing a statute intended to prevent some of these results, it must be made to appear that it is reasonably certain they will follow the use of the name sought to be enjoined. The principle is the same in either case.
The decree is reversed, and a decree will be entered in this court dismissing the bill, with costs of both courts to the defendant bank. It may be stated in the decree that it is without prejudice to the right of complainant to relief, if actual injury and confusion shall result from defendant’s use of the proposed corporate name.
Hooker, Moore, McAlvay, and Brooke, JJ., concurred. | [
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Montgomery, C. J.
The Detroit City Railway Company obtained a franchise from the city of Detroit in 1863. At that time the city limits were located at Mt. Elliott avenue. In 1885, by amendment of the charter, the city limits were extended to Baldwin avenue. In 1889 an ordinance was passed by the council and accepted by the Detroit City Railway Company, providing for the sale of workingmen’s tickets, so called, 8 for 35 cents during certain hours of the day, good over any of its lines in said city for a single fare. This ordinance also gave the right to the company to extend its double track on Jefferson avenue to the easterly limits of the city of Detroit. The Detroit City Railway Company continued to operate the line until 1890. Its rights and franchises were subsequently assigned to the defendant. A later ordinance imposes the duty of keeping these workingmen’s tickets on sale by conductors. The defendant subsequently purchased a street railway located wholly without the city limits, and maintained under authority of a franchise from the township of Grosse Pointe and the village of Fair-view.
In 1907 the city limits of Detroit were extended to include a large portion of this territory. These two cases were brought to enforce penalties in the one case for refusing to accept a ticket good in the city of Detroit for passage over this last-named territory, and the other to recover a penalty for failure to keep tickets entitling a passenger to ride over this territory from any point in the city on sale. The question in each case is therefore whether the requirements of the ordinance of 1889, that passengers should be conveyed to any point in the city limits binds the defendant, as assignee of the Detroit City Railway Company, to transport passengers to the easterly limits of Jefferson avenue as extended, notwithstanding that the defendant company is the assignee of the franchise granted by Grosse Points township and approved by the village of Fairview.
It is the contention of the city that, when the provision was made in the ordinance for transporting passengers anywhere within the city limits, it means the city limits as they may from time to time be fixed. On the other hand, the defendant contends that the defendant occupies the position of an assignee of the Grosse Points Railway Company, and that it is not, as to the railway in the late village of Fairview, an assignee of the Detroit City Railway Company. There are two methods of extending street railways. One is by construction, and the other may be by purchase under section 6448, 2 Comp. Laws. The purchased railway becomes as much a part of the system as does the railroad as constructed. So wé think it after all gets back to the question of whether the real intent of this ordinance was to provide for single fares within the city limits as such limits should from time to time be fixed.
We think it not unreasonable to hold that this mutual contract was made in view of the power of the legislature of the State to increase or diminish the territory within the city, and that neither the city nor the company contemplated that in case of an extension of the lines of the company within the city, either by purchase or acquisition from another company, an increased fare should be demanded. The case of Township of West Bloomfield v. Railway, 146 Mich. 198 (109 N. W. 258, 117 Am. St. Rep. 628), involved a question not entirely dissimilar. In that case the company had contracted that the fare from any point in said township to the city of Detroit and vice versa should not exceed the rate then charged by the company from Pontiac and Detroit and vice versa. The company while in competition with another line maintained a fare of 25 cents. It subsequently purchased the competing line, and over the line passing through West Bloomfield increased the fare from Pontiac to Detroit to 35 cents. It was held that the language of the provision that the rate of fare from any point in the township to Detroit should at no time exceed the rate then charged from Pontiac to Detroit and vice versa referred to the company mentioned in the franchise, and it included any line which that company or its assignee might at any time build or purchase.
A case almost on all fours with the case at bar is that of Indiana R. Co. v. Hoffman, 161 Ind. 593 (69 N. E. 399). Its reasoning is convincing, and we think the case should be followed. The case presented does not involve in this view an interference with any vested right of the company as assignee of the Eairview Railway, but resolves itself simply into a question of the construction of the ordinance, and we construe the ordinance to include any street railway constructed or purchased by the defendant which shall be within the city of Detroit as the limits of said city may from time to time be fixed by the legislature.
The convictions are affirmed.
McAlvay, Brooke, Blair, and Stone, JJ., concurred. | [
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Blaie, J.
The plaintiff’s intestate in this case, Henry Austin, met his death as the result of being struck on the head by the trolley wheel and pole of an interurban car of the Detroit, Monroe & Toledo Short Line upon the back platform of which he was riding, and this case was instituted by the plaintiff as administratrix and daughter of the deceased to recover damages for his death. The declaration contained two counts; one setting up liability under the “ death act,” and the other alleging liability under the “survival act.” The length of time which elapsed between the fatal blow and the complete extinction of life is uncertain. According to the highest estimate, about 20 minutes elapsed from the time of the injury until the car reached Rockford. At this place a physician was sent for and procured, which must have consumed some time.
The physician testified’:
“ The man was on the platform of the car when I got there, and I looked at the man, and he was breathing at that time, and he was alive, and blood was coming out of his mouth and some blew on my vest. The man did not live longer than a minute after I got there. I raised the man up and tried to see what his pulse was and noticed that it was nearly gone. He had a contusion on the back part of the base of the brain, five inches and a half. * * * Mr. Austin was unconscious during the time I saw him. The breathing was not a normal breathing, still he breathed so that the blood came out of his mouth on my hand.”
The lowest estimate of the time between the accident and taking Mr. Austin from the car at Rockford was 5 or 10 minutes. At the close of plaintiff’s case the following occurred:
“Mr. Brennan: I would like Mr. Milligan to elect at this time which remedy he takes.
“The Court: Under the ruling of the cases you should elect which remedy you seek to recover.
“Mr. Milligan: Of course to save the record, while your honor is going to rule against the suryival act here applicable, I claim under the survival act; but, if not, I will claim under the death act.
“Mr. Brennan: He cannot play fast and loose; he has to elect. I think he has to make a positive statement on the record, which remedy he is going to pursue. * * *
“The Court: You must make your election now.
“Mr. Milligan: The only case—
“The Court: Never mind the argument, when I rule I rule.
“ Mr. Milligan: Well, then, I will rely upon the death act.
“Mr. Brennan: I then ask for the direction of a verdict.
“The Court: Why?
“ Mr. Brennan: I would like the jury excused.
“(Jury excused.)
“ The Court: Was this brought by the estate?
“Mr. Brennan: Yes, and my contention is under the showing in this case there is no one legally dependent upon or entitled to support from Henry Austin. The only heirs of Henry Austin were a married daughter and a son, living West, and both of them having attained their majority. Under the cáse of Rouse v. Railway [128 Mich. 149], I claim that the presence of a person legally entitled to support is not present in this case.
“(Argument by Mr. Brennan.)
“ The Court: I will hear from the other side.
“ Mr. Milligan: Your honor has ruled I have to elect my count. Now upon that proposition—
“ The Court: After I ruled I will not hear it. I have thought of that ahead, and I have looked it up, and there is no use of taking time upon it.
11 Mr. Milligan: Then I can have an exception to the refusal to permit me to be heard upon that.
“ The Court: Well, you have your ruling. There would not be anything but pain and suffering for 15 minutes, and the fact is that they are not conscious of pain that way.
“Mr. Milligan: Your honor, I want an exception to that.
“(At this point Mr. Brennan consented that a verdict be directed against the Detroit, Monroe & Toledo Short Line for the amount of funeral expenses paid by the administratrix.)”
A verdict was directed in accordance with defendants’ motion, and plaintiff has brought the record to this court, for review upon writ of error.
Among the errors assigned and relied upon for a reversal are the following:
“The court erred in holding that recovery could not be' had under the ‘ survival act,’ so called.
“ The court erred in holding that plaintiff’s intestate did not survive within the meaning of the statutes.
“The court erred in holding that plaintiff must elect under which act he would go to the jury before defendant had sworn a .witness or put in its case or any part of its defense. * * *
“The court erred in compelling plaintiff to elect his remedy under the death act.
“ The court erred in holding that the death act alone applied to the case.”
Counsel for defendant contend that plaintiff unequivocally elected to stand upon the death act, and, if not, there was no error in the rulings of the court, since the survival act does not apply to the facts shown, and there was no liability for damages under the death act. It is also claimed that no exception was taken to the ruling of the court compelling an election. It is apparent from the colloquy between court and counsel that counsel only elected to go to the jury upon the death act because the court had expressed the opinion that there was no case under the survival act, and we think the exception to the later ruling of the court should be held to apply to the previous ruling upon substantially the same subject. The ruling of the court requiring plaintiff to elect was erroneous. Carbary v. Railway, 157 Mich. 683 (122 N. W. 367).
We are also of the opinion that it cannot be said, as a matter of law, upon this record, that the survival act did not apply. This case does not fall within the principle of the case of West v. Railway, 159 Mich. 269 (123 N. W. 1101). In that case the direct cause of death continued to operate directly upon the injured person until life was extinct. In the present case the direct cause of death did not operate continuously, but ceased with the first blow, and plaintiff survived the original injury from 10 minutes to perhaps a half hour. In our opinion, the facts disclosed by this record bring the case within the principle of Olivier v. Railway Co., 134 Mich. 367 (96 N. W. 434, 104 Am. St. Rep. 607).
The judgment is reversed, and a new trial granted.
Bird, C. J., and McAlvay, Brooke, and Stone, JJ., concurred. | [
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Moore, J.
This is an action of trover against the defendant for the unlawful conversion of a promissory note in which the plaintiffs were named as payees, which, it is claimed by them, was unlawfully indorsed by their traveling salesman and collector. The case has been here once before and is reported in 153 Mich. 253 (116 N. W. 1088). A reading of the opinion then filed will make a long statement of facts unnecessary at this time.
Upon the second trial, there was less inconsistency in the testimony of Mr. Heusel than upon the first. It is the claim of defendant that, upon this trial, there was no inconsistency in his testimony. Upon the second trial, the cashier of the bank was sworn as a witness. He testified in substance that the loan was made to Mr. Heusel. In addition to this he testified in part as follows:
“I wrote the note that was made that day. After it was written I handed it to Samuel Heusel. He stepped over to the other gentleman at the customer’s desk on the south side of the bank, and in the meantime I went to the teller’s cage and got the money, and, when I came back, the note was there, and I also canceled the $500 note, and put it with the money in front of Mr. Heusel. He took the note itself, and paid the currency over to this man. I cannot recollect that I had any conversation with this other man.”
On the cross-examination he testified in part as follows:
<t* * * j said ^hat Mr. Heusel came down to the bank and wanted some money, and he stated that he had a bill to pay Lonier & Hoffer. He had money enough to pay $400 on the $590 note. He said he wanted to borrow $367.29. That was the amount he owed Lonier & Hoffer as I understood it at that time, and he wanted to get money enough to pay that. He said, ‘ I want to borrow this money from the bank.’
“Q. Why did you write the name of Lonier & Hoffer in that note ?
“A. I wrote it in there. In the first place, I took a note for $190 in Lonier & Hoffer—
“ Q. That is on the other matter ?
“A. And, that note being in my presence and the bill before me for $367.29, I wrote the name of Lonier & Hoffer in there, and handed this note back to Mr. Heusel, and I supposed at the time that this man was a member of that firm — he procured that indorsement, they took it away from my desk. I did not. Mr. Heusel brought it back to me with the indorsement on.
“ Q. You wrote that note up then just as Mr. Heusel told you to, to Lonier & Hoffer, didn’t you ? You wrote the note?
“ A. I wrote the note.
“ Q. And you followed his directions, saying that it was to pay a bill of Lonier & Hoffer, and this note was to run to Lonier & Hoffer ?
“A. I don’t know as he said that.
“ Q. He must have said it, or you would not have written it. You did not know Lonier & Hoffer unless Mr., Heusel told you who they were.
“A. I did not know this man. I had known of the> name of Lonier & Hoffer before. I don’t think Heusel. stated, ‘This is to pay this bill,’ and I drew the note im favor of Lonier & Hoffer. I probably wrote the name of Lonier & Hoffer more to show that Sam Heusel had paid that bill than for any other reason. I don’t think Heusel instructed me to write it in. I knew what to write because I had the old note before me. I had the bill before me, and I supposed this man whose indorsement he secured was a member of the firm.
“Q. So that, when he indorsed, you would have a genuine indorsement ?
“A. I did not care anything about an indorsement. I made the loan to Mr. Heusel. Yes, sir; it is true that I knew the minute I wrote the name of Lonier & Hoffer in the note I would have to have the indorsement of Lonier & Hoffer. The maker procured the indorsement, and I did not go any further. I supposed that it was Mr. Hoffer standing there, I thought I was going to get his genuine indorsement. I handed the note to Heusel, and he procured the indorsement. It seemed they talked the matter over before. No; sir; if the note was to run to the Ann Arbor Savings Bank, it would not have Lonier & Hoffer’s. name.
“Q. So you handed him the note then for the purpose of getting Lonier & Hoffer’s signature ?
“A. And for himself to sign. We got the signature. I did not ask it because Mr. Heusel got this indorsement himself. I did suppose it to be correct. I think it has turned out that this was not Hoffer, but Donaldson. No; this man (pointing to Mr. Hoffer) is not the man who was there. No; Mr. Hoffer is not the man who stood there at all. It has turned out that it was Donaldson. I simply thought that, if the maker of the note procured the indorsement of the payee, I would look no further. If he was satisfied that was an indorsement of the paper, I certainly was. I presume I became satisfied that I had the indorsement of Lonier & Hoffer. Yes, sir; I have taken thousands of notes in behalf of the Ann Arbor Savings 'Bank; not always when taking such do I make the bank ;payee in the note. Yes; sometimes I make somebody 'else. They are required to be indorsed. Sometimes we have an indorser. No, sir; if Sam Heusel comes in and asks for a loan, I don’t put somebody’s else name in it. Yes, sir; I put the Ann Arbor Savings Bank in as payee. That is the universal custom except when he offers an indorsement.”
At the conclusion of the case a motion was made to direct a verdict for defendant. In disposing of the motion the judge stated, among other things, as follows:
“ There are two propositions that it seems to me ought to control it. The testimony is undisputed that the agent here of the plaintiff, Mr. Donaldson, had full authority to sell goods, the property of the plaintiffs, and to make collections, and, as I remember the testimony in this particular case as far as this particular bill is concerned, owing by Mr. Heusel, the matter was placed in his hands with full authority to collect. It seems to me that under those circumstances the law of agency must be that he would have the right to negotiate this paper even if it had been given by Mr. Heusel to the agent. The agent would be justified in taking that to the bank and having it discounted. It seems to me that must be the law as to implied authority in the absence of any knowledge coming to the bank of any restrictions upon his powers. It seems to me that would be the controlling law in this case, and I so suggested, but the Supreme Court did not pass upon that. But there seemed to be on the other trial some in consistency in the testimony of the plaintiffs as produced by Mr. Heusel, and the testimony of the cashier was not offered on the other trial. Now, the testimony of Mr. Heusel is produced, and it is entirely consistent. His statement is that this was a loan made by the bank to him, to nobody else, that this note was not discounted by the bank. There is no dispute about that. And the cashier is now introduced whose testimony is also uncontradicted and undisputed that this was a loan made by the bank to Mr. Heusel and nobody else, that they did not discount this paper” — and thereupon directed a verdict for defendant.
As appears in the former opinion, it was claimed by plaintiffs that, while their traveling salesman had authority to make collections, he had no authority to indorse and discount paper for them. We think it cannot be said that, because he had authority to make collections, this gave him authority, by implication or otherwise, to indorse the names of his employers to notes, nor to negotiate notes given to them.
As to the second proposition, it is true the cashier testified the loan was made to Mr. Heusel, but he also testified that the payees named in the note were the plaintiffs, and that he supposed when Mr. Donaldson indorsed the note that it was in fact Mr. Hoffer, one of the plaintiffs. This, taken with all the other testimony taken in the case, left the case where it could not be disposed of as a matter of law.
Judgment is reversed, and new trial ordered.
McAlvay, Brooke, Blair, and Stone, JJ., concurred. | [
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Boonstra, P.J.
In this action for unpaid first-party no-fault benefits, plaintiff appeals as of right the Feb ruary 19, 2013 order of the trial court granting summary disposition in favor of defendant pursuant to MCR 2.116(C)(7). We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
On May 12, 2009, Matthew Badelalla, an employee of Jet’s Pizza, was driving a 1993 Toyota Camry owned by his mother, Mary Basha, while delivering pizzas. Plaintiff was operating a motorcycle, and stopped on 18 Mile Road at an intersection with Mound Road in Sterling Heights. While stopped, plaintiffs motorcycle was struck from behind by Badelalla’s slow-moving vehicle. The impact caused plaintiffs motorcycle to fall to plaintiff s left side. Plaintiff jumped off of the motorcycle and was able to land on his feet without falling to the ground. His motorcycle suffered $2,000 in damage, but was still drivable. Plaintiff reported no injuries, received no medical treatment at the scene, and drove his motorcycle back to work. Plaintiff had no complaints of injury the day of the accident. However, plaintiff alleged that he developed back and shoulder pain as a result of the accident, eventually resulting in surgeries on his right shoulder, neck, and back. Plaintiffs treating physician indicated that he had restricted plaintiff from returning to work and that plaintiff would likely never return to his same position as a carpenter at the Ford Sterling Axle Plant.
On June 2, 2010, more than one year after the accident, defendant was provided with notice that plaintiff had been injured and that defendant was the highest priority no-fault insurer. An employee of defendant stated during her deposition that defendant had paid plaintiff $21,714.87 in medical expenses for doctor visits and physical therapy. Defendant’s first payment to plaintiff was made on July 23, 2010.
On December 1, 2010, plaintiff filed suit against Badelalla, Basha, and Jet’s Pizza, alleging that Badelalla’s negligence caused plaintiffs injury, Basha negligently allowed Badelalla to drive her car, and Jet’s Pizza was vicariously liable for the actions of Badelalla. After failing to respond to the summons and complaint, an order of default was entered against Badelalla and Basha on January 19, 2011.
At some point after plaintiff filed the complaint, defendant stopped paying benefits to plaintiff. Plaintiff then moved the trial court to allow him to amend his original complaint to add a first-party no-fault claim against defendant. The trial court entered an order allowing plaintiff to file an amended complaint to add defendant to the suit. In response to the trial court’s order, plaintiff filed his amended complaint alleging that defendant had violated the no-fault act by refusing to pay plaintiffs benefits. Defendant filed an answer and affirmative defenses. Among the affirmative defenses asserted by defendant was the following:
3. That since notice was given, or payment has been previously made, Plaintiff may not recover benefits for any alleged expenses incurred more than one (1) year before the date on which the action was commenced, pursuant to MCL 500.3145(1).
While thus referring to MCL 500.3145(1) and the one-year-back rule that is reflected in that statutory provision, defendant did not assert an affirmative defense that specifically referred to the separate statute of limitations provision that is also reflected in MCL 500.3145(1).
The matter proceeded through discovery relative to both plaintiffs first-party and third-party no-fault claims, but the trial court eventually entered an order severing the claims for trial, with the trial on plaintiffs third-party no-fault claims against Jet’s Pizza to take place first and the trial on plaintiffs first-party no-fault claims against defendant to take place thereafter. Plaintiffs third-party no-fault claims against Jet’s Pizza proceeded to trial before a jury. On December 6,2012, the jury returned a verdict of no cause of action, explicitly deciding that plaintiff was injured but that Jet’s Pizza did not proximately cause plaintiffs injuries.
Shortly after the disposition of the third-party no-fault claim, defendant filed two separate motions for summary disposition against plaintiff on this first-party no-fault claim. The first motion, filed on January 22, 2013, pursuant to MCR 2.116(C)(7) and (10), asserted that a motorcycle is not a motor vehicle under the no-fault act and therefore does not fall under the act’s protection, and further that the jury verdict on the third-party no-fault claim conclusively determined that Badelalla’s vehicle was not “involved” in the accident.
One week later, on January 29, 2013, defendant filed a second motion for summary disposition under MCR 2.116(C)(7) and (10). In that motion, defendant argued that plaintiffs claim was barred by the statute of limitations provision of MCL 500.3145(1). Specifically, defendant argued that MCL 500.3145(1) barred a claim for first-party no-fault benefits filed more than one year after the date of the accident, absent certain conditions. According to defendant, because the accident occurred on May 12, 2009, and the amended complaint asserting a first-party no-fault claim against defendant was not filed until May 16, 2011, plaintiff could not survive summary disposition unless he had provided written notice or received payment from defendant within one year of the accident. Notice, however, was not provided until June 2, 2010, and a payment from defendant was not received until July 23, 2010, both more than one year after the accident.
Plaintiff responded to defendant’s motions on February 12, 2013. Plaintiff argued that defendant had waived the statute of limitations defense by failing to assert it in its first responsive pleading as an affirmative defense. Plaintiff also argued that he had not violated the statute of limitations because defendant’s July 23, 2010 payment of benefits revived his claim. According to plaintiff, MCL 500.3145(1) does not require any payments be made within one year of the accident; it instead provides an exception to the statute of limitations when an insurer has at any time made a payment on a claim.
On February 19, 2013, the trial court heard defendant’s motions for summary disposition. During the hearing, defendant acknowledged that the caselaw was sparse on the precise statute of limitations issue before the court. But, defendant argued on the basis of the language of the statute, a payment was required to be made within one year of the accident in order to fulfill the requirements of the second exception found in MCL 500.3145(1). Defendant also argued that it had not waived the statute of limitations defense. While defendant had not identified that specific defense in its first responsive pleading, it had cited the statute containing the limitations provision, although it had cited it in asserting the one-year-back rule. Defendant argued that citation of the statute should have been enough to provide plaintiff with notice of defendant’s intent to use the affirmative defense, and that, if it was not, then defendant requested that it be allowed to amend its pleading to include the affirmative defense, which the trial court could permit within its discretion.
The trial court found defendant’s position to be persuasive. Therefore, because plaintiff had not provided notice or received a payment within one year of the accident, the statute of limitations had run and summary disposition was proper in favor of defendant. The trial court did not address the waiver issue. On February 20, 2013, the trial court entered an order granting defendant’s motion for summary disposition, on statute of limitations grounds, “for the reasons stated on the record.” The trial court did not rule on defendant’s earlier-filed motion for summary disposition.
Plaintiff moved for reconsideration. The trial court denied that motion, stating that its determination was supported by the plain language of the statute and this Court’s decision in Velazquez v MEEMIC, unpublished opinion per curiam of the Court of Appeals, issued April 6, 2006 (Docket No. 264776). Specifically, the trial court reasoned:
In light of the plain language of MCL 500.3145(1) and the Court of Appeals’ decision in Velazquez, supra, the Court was — and remains — convinced that an insurer must either (1) be given notice within one year after the accident, or (2) have paid benefits within one year of the accident, in order for an insured to be entitled to bring suit under the No-Fault Act. Accordingly, plaintiffs motion for reconsideration is properly denied.
This appeal followed.
II. STANDARD OF REVIEW
We review de novo a trial court’s decision regarding a motion for summary disposition. Jimkoski v Shupe, 282 Mich App 1, 4; 763 NW2d 1 (2008). “Subrule (C)(7) permits summary disposition where the claim is barred by an applicable statute of limitations.” Nuculovic v Hill, 287 Mich App 58, 61; 783 NW2d 124 (2010). In considering a motion under MCR 2.116(C)(7), “[w]e consider all documentary evidence submitted by the parties, accepting as true the contents of the complaint unless affidavits or other appropriate documents specifically contradict them.” Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678 (2001), citing MCR 2.116(G)(5). For purposes of MCR 2.116(C)(7), this Court must consider the provided documentary evidence in a light most favorable to the nonmoving party. Moraccini v Sterling Heights, 296 Mich App 387, 391; 822 NW2d 799 (2012). Further, “[t]his Court reviews de novo questions of law involving statutory interpretation.” Mich Muni Liability & Prop Pool v Muskegon Co Bd of Co Rd Comm’rs, 235 Mich App 183, 189; 597 NW2d 187 (1999).
III. INTERPRETATION OF MCL 500.3145(1)
Plaintiff argues that the trial court erred by grafting a temporal limitation onto the portion of MCL 500.3145(1) at issue, and by concluding that plaintiffs claim was barred under the limitations period it prescribes. That is, plaintiff maintains that when an insurer has made a payment of benefits, the one-year statute of limitations provision of the statute does not apply even if the payment was not made within one year of the accident. We disagree.
Recently, in In re Harper, 302 Mich App 349, 354-355; 839 NW2d 44 (2013), this Court set out the proper process for interpreting statutory law:
The “primary goal” of statutory interpretation “is to discern the intent of the Legislature by first examining the plain language of the statute.” Driver v Naini, 490 Mich 239, 246-247; 802 NW2d 311 (2011). A statutory provision must be read in the context of the entire act, and “every word or phrase of a statute should be accorded its plain and ordinary meaning.” Krohn v Home-Owners Ins Co, 490 Mich 145,156; 802 NW2d 281 (2011). When the language is clear and unambiguous, “no further judicial construction is required or permitted, and the statute must be enforced as written.” Pohutski v City of Allen Park, 465 Mich 675, 683; 641 NW2d 219 (2002) (quotation marks and citation omitted). Only when the statutory language is ambiguous may a court consider evidence outside the words of the statute to determine the Legislature’s intent. Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). However, “[a]n ambiguity of statutory language does not exist merely because a reviewing court questions whether the Legislature intended the consequences of the language under review. An ambiguity can be found only where the language of a statute, as used in its particular context, has more than one common and accepted meaning.” Papas [a Gaming Control Bd], 257 Mich App [647, 658; 669 NW2d 326 (2003)].
Therefore, the starting point of this Court’s analysis is the plain language of the statute. MCL 500.3145(1) states, in pertinent part:
An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury. If the notice has been given or a payment has been made, the action may be commenced at any time within 1 year after the most recent allowable expense, work loss or survivor’s loss has been incurred. However, the claimant may not recover benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced.
The statute begins by establishing a general rule that an action for first-party personal protection insurance benefits “may not be commenced later than 1 year after the date of the accident causing the injury . . . MCL 500.3145(1). However, the statute then provides two exceptions to the general rule, under which a suit may be brought more than one year after the date of the accident. The first exception is when “written notice of injury as provided herein has been given to the insurer within 1 year after the accident. . . .” The second exception is when “the insurer has previously made a payment of personal protection insurance benefits for the injury.” Although the first exception explicitly requires that notice have been provided within one year of the accident, the second exception requires that the insurer have “previously” made a payment of insurance benefits.
The question then becomes what the adverb “previously” means in the context of this statutory language. As the parties note, no published authority exists that is precisely on point in deciding this issue, nor has the Legislature provided a definition of the word “previously,” as used in this statute. In such situations, words and phrases in a statute should be read in context and given their ordinary meanings. Harper, 302 Mich App at 354. A reviewing Court may consult a dictionary as an aid to interpretation. Johnson v Pastoriza, 491 Mich 417, 436; 818 NW2d 279 (2012). The word “previously” means “coming or occurring before something else; priori]” Random House Webster’s College Dictionary (2d ed, 2001), p 1049. The pertinent issue before this Court is what the “something else” is before which the payment by an insurer must have come or occurred. Plaintiff essentially argues that the “something else” is simply the filing of a plaintiffs first-party claim against a defendant; defendant argues, and the trial court held, that the “something else” is the expiration of one year following the accident. We agree with defendant and the trial court.
The two exceptions in MCL 500.3145(1) to its one-year limitations period are clearly separated by the word “or.” The word “or” is a disjunctive term indicating a choice between alternatives. See Paris Meadows, LLC v Kentwood, 287 Mich App 136, 148; 783 NW2d 133 (2010). In the context of this statute, those alternatives are the two exceptions to the one-year limitations period. Since the first exception is inapplicable in this case, our interpretation of the plain language of the statute is facilitated by removing the language of the first exception, such that the relevant statutory language becomes:
An action for recovery of personal protection insurance benefits . .. may not be commenced later than 1 year after the date of the accident causing the injury. .. unless the insurer has previously made a payment of personal protection insurance benefits for the injury. [MCL 500.3145(1).]
We conclude from this plain statutory language that the Legislature intended that the word “previously” mean previous to “1 year after the date of the accident causing the injury....” This interpretation is supported by the fact that the Legislature juxtaposed “previously” with “1 year after the date of the accident causing injury,” which language thus appears much closer in proximity to the word “previously” than does the Legislature’s earlier reference to the commencement of “[a]n action.” This interpretation also is supported by two principles of statutory construction: our directive to avoid interpretations that result in absurd consequences, and our directive to avoid interpretations that render portions of a statute nugatory. See Detroit Int’l Bridge Co v Commodities Export Co, 279 Mich App 662, 674; 760 NW2d 565 (2008); Robinson v Lansing, 486 Mich 1, 21; 782 NW2d 171 (2010). To hold, as plaintiff suggests, that any payment made by an insurer would revive a stale claim, no matter how much time has elapsed, would render an absurd result by allowing, potentially, even decades-old claims to be asserted. Further, that interpretation would essentially eliminate the limitations period of MCL 500.3145(1) in cases in which an insurer has ever paid anything on a claim, rather than providing a limited exception that allows for the filing of suit more than one year after the accident in certain circumstances. We decline to adopt plaintiffs preferred interpretation, which we find would be in contravention of the “legislative purpose in the no-fault act in encouraging claimants to bring their claims to court within a reasonable time and the reciprocal obligations of insurers to adjust and pay claims seasonably” and to “protect against stale claims and protracted litigations.” Pendergast v American Fidelity Fire Ins Co, 118 Mich App 838, 841-842; 325 NW2d 602 (1982).
In reaching this conclusion, we are mindful of the fact that in crafting the first exception the Legislature chose language that expressly required written notice of injury “within 1 year after the accident,” whereas in crafting the second exception it chose to use the word “previously.” However, in the context of this statute, we conclude that the two phraseologies mean precisely the same thing. The Legislature was not required to use identical terminology in crafting the two exceptions, particularly when doing so in the context of a single statutory sentence would be repetitive. We conclude in this circumstance that the Legislature did not intend different temporal meanings in the two exceptions, but instead intended that the second exception’s use of the word “previously” conveyed the same temporal meaning as did the quoted language of the first exception.
We therefore hold that MCL 500.3145(1) allows for suit to be filed more than one year after the date of the accident causing injury only if the insurer has either received notice of the injury within one year of the accident or made a payment of personal protection insurance benefits for the injury within one year of the accident.
IV WAIVER OF AFFIRMATIVE DEFENSE
Plaintiff also argues that, even if the statute of limitations bars his claim, defendant has waived the defense by failing to assert it in its first responsive pleading. We disagree.
A party generally must raise an affirmative defense in his or her first responsive pleading or it is waived. Meridian Mut Ins Co v Mason-Dixon Lines, Inc (On Remand), 242 Mich App 645, 647; 620 NW2d 310 (2000). MCR 2.111(F)(3) provides:
Affirmative defenses must be stated in a party’s responsive pleading, either as originally filed or as amended in accordance with MCR 2.118. Under a separate and distinct heading, a party must state the facts constituting
(a) an affirmative defense, such as contributory negligence; the existence of an agreement to arbitrate; assumption of risk; payment; release; satisfaction; discharge; license; fraud; duress; estoppel; statute of frauds; statute of limitations; immunity granted by law; want or failure of consideration; or that an instrument or transaction is void, voidable, or cannot be recovered on by reason of statute or nondelivery;
(b) a defense that by reason of other affirmative matter seeks to avoid the legal effect of or defeat the claim of the opposing party, in whole or in part;
(c) a ground of defense that, if not raised in the pleading, would be likely to take the adverse party by surprise.
In this case, defendant cited MCL 500.3145(1) in an affirmative defense, but only referred to the one-year-back rule contained in that statute. Specifically, defendant stated, “That since notice was given, or payment has been previously made, Plaintiff may not recover benefits for any alleged expenses incurred more than one (1) year before the date on which the action was commenced, pursuant to MCL 500.3145(1).” At the summary-disposition motion hearing, defendant argued that its citation of the statute should have been enough to provide plaintiff with notice of defendant’s intent to rely on the affirmative defenses of the statute, including the statute of limitations provision, and that, if it was not, then defendant requested that it be allowed to amend its pleading to include the affirmative defense, which the trial court could permit within its discretion. The trial court did not specifically rule on the waiver issue, or on the alternative request to amend, but granted summary disposition in favor of defendant as previously described in this opinion.
“[T]he primary function of a pleading in Michigan is to give notice of the nature of the claim or defense sufficient to permit the opposite party to take a responsive position.” Stanke v State Farm Mut Auto Ins Co, 200 Mich App 307, 317; 503 NW2d 758 (1993). Given defendant’s citation of MCL 500.3145(1) in its affirmative defenses, plaintiff arguably was made aware of the limitations period of that statute and not unfairly surprised by defendant’s assertion of the defense. See Stanke, 200 Mich App at 317. However, the fact is that defendant did not refer to the statute of limitations in any fashion, and instead specifically described its affirmative defense as relating to the one-year-back provision of the statute, thereby arguably suggesting that it was not citing the statute for any other purpose.
However, leave to amend pleadings should be freely granted to a nonprevailing party at summary disposition, unless amendment would be futile or otherwise unjustified. Lewandowski v Nuclear Mgt Co, LLC, 272 Mich App 120, 126-127; 724 NW2d 718 (2006). Therefore, had the trial court found that defendant had failed to plead the statute of limitations defense with sufficient clarity, it could have, in its discretion, granted defendant leave to amend its pleading, in which case the result would be the same — the limitations period of MCL 500.3145(1) would still bar plaintiffs claim. Given the trial court’s discretion to simply allow amendment of the pleading, and in the interest of judicial efficiency, we see no need to remand the case for the trial court to do just that. Accordingly, we conclude that defendant did not waive the affirmative defense of the statute of limitations.
Affirmed.
Meter, J., concurred with Boonstra, P.J.
Capitalization altered.
Unpublished opinions of this Court are not binding precedent, but may be persuasive authority. MCR 7.215(C)(1).
After setting forth the general one-year limitations period and the two exceptions, the statute then states the one-year-back rule, which limits a claimant from recovering benefits “for any portion of the loss incurred more than 1 year before the date on which the action was commenced.” MCL 500.3145(1). Neither the first exception to the general limitations period nor the one-year-back rule is at issue in this case.
We note that plaintiffs first-party no-fault claim against defendant was added by way of an amended complaint in a previously filed action for third-party no-fault benefits against Badelalla, Basha, and Jet’s Pizza. The date of filing of plaintiffs original complaint does not control, however, because the action at that time was for third-party no-fault benefits and, thus, was not “[a]n action for recovery of personal protection insurance benefits ....” MCL 500.3145(1). See McCormick v Carrier, 487 Mich 180, 279-280; 795 NW2d 517 (2010) (Markman, J., dissenting) (explaining the difference between first-party and third-party benefits); Hunt v Citizens Ins Co, 183 Mich App 660, 666; 455 NW2d 384 (1990), citing Taulbee v Mosley, 127 Mich App 45, 47-48; 338 NW2d 547 (1983) (holding that the filing of third-party claims against other parties does not toll the running of the limitations period under MCL 500.3145(1) with regard to a defendant against whom first-party claims are asserted when the first-party claims are added to the original suit by amended complaint). In any event, even plaintiffs original complaint seeking third-party no-fault benefits was filed more than “1 year after the date of the accident causing injury ....” MCL 500.3145(1). | [
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Martin Ch. J.:
Two questions are raised by the parties interpleading, for our determination: 1st, Whether Thomas is entitled to set off the one-half of the judgment obtained on what is called the Enos contract, being about two thousand dollars, against the note for two thousand dollars, in Beckwith’s hands; and, 2d, Whether he is entitled to set off the one thousand dollar acceptance of the Hunters against such note,
The claim to set off the one-half of the judgment obtained on the Enos contract, is based upon the proposition that the firm of W. C. & A. A. Hunter was interested in, the contract, and was of course bound by the judgment, and liable to contribute towards its satisfaction. An ex-, amination of the testimony satisfies us that no such liability exists. W. C. Hunter never had any interest in that contract, was never a party to it, and is of course not bound by the judgment. A. A. Hunter was individually interested in the contract, and it was his private adventure; there is no evidence that W. C. Hunter ever had any knowledge. 'of, or participation in, it, or that he was regarded by any "one as connected with it, until this claim of set-off was made. While it is true that a partnership may be bound ■b.y a transaction in the name of one partner, as well as by the joint name, if it be within the scope of the partnership 'business, yet this is only true when the transaction is one in behalf of the .partnership, and not of a member. If a member enter into a transaction in his own behalf, which is within the scope of the partnership business, his co-partner may insist that it is a fraud upon him, -and claim the benefit resulting from it-; yet this is a right which the partner can alone assert, and is not available to third parties for the purpose of fixing a liability upon the partnership, when ■'such claim has not been asserted. Nor, under such circumstances, will the acts and declarations of the partner actually engaged in the transaction in his own name, bind the partnership so as to affix a liability upon it. As the transaction is ostensibly and .primarily his own, and in fraud of his co-partner, -if he chooses so to regard it, A. A. Hunter can not add to this fraud the further one of making the partnership liable upon his individual adventures, by his voluntary acts and declarations.
It is further insisted that Thomas is entitled to have the 'Amount of the one thousand dollar acceptance set off -against this note.
There is no evidexxce in the case tending to show for what purpose, or uxxder what circumstances, the acceptance was .givexx. All we kxrow is the simple fact that Thomas, on the 25th of July, 1850, drew upon the Hunters for oxxe thousand dollars, at sixty days, and that the draft was accepted by them. We are not even informed in whose favor the draft was drawn — in fact, the presumption is that it was in his own favor, as he alleges that he held the acceptance at the time of the assignment by the Hunters to Beckwith, and it had then some thirty days to run. It may have been ’made -as accommodation paper, and, this failing, the accept- mice remained in Thomas’s hands. Whatever may have been the fact, the Court will infer nothing in favor of this claim; for the relief being purely equitable, and beyond that given by the statutes of set-off, the party asking it must affirmatively show the existence of those facts necessary to raise the equity. Although at law the acceptance is prima facie evidence of funds in the hands of the acceptor, yet equity requires something’ more than a prima facie case upon which to act, in cases requiring a departure from the statute in affording the remedy. Thomas, it must be remembered, is, as to this claim of set-off, in the position of one seeking relief; for there is no pretence that he has actually paid the two thousand dollar note, or any part of it. ITe asks the Court to appropriate the amount of that acceptance upon the note; and the onus is cast upon him to establish his equitable, title to such relief.
Now, at law, he had, at the time of the assignment by the Hunters to Beckwith, no right to set off the amount of this acceptance against the note, as it was not due; and it is upon their rights, as they then existed, that we are. asked to adjudicate. Has he any such equitable right? As the case is presented to us, we have only evidence, at the most, of the existence of cross demands between them, one. only of which was due. It appears that in May, 1849, the. note for two thousand dollars was given by Thomas to the Hunters, and that, in July of that year, he assigned to them the securities out of which this controversy arises. This note is certainly not evidence of any prior dealings, nor of the existence of any mutual credits between the parties. Hpon this point of their dealings, there is again no testimony. Thomas alleges that the note was given- for the security of a balance of his account with the Hunters; but we have no evidence that any such account ever existed, and in his assignment of the securities,, he alleges that it was given for borrowed money; and so Beck-with insists the fact to. be. Nor- is there testimony of' any subsequent dealings or credits between Thomas and the Hunters. The evidence is altogether silent upon this point also. The only thing which clearly appears, is the fact that Thomas assigned certain demands to secure this two thousand dollar note; but what is their amount and value, is not shown nor stated. Whether they amounted to two thousand dollars, or exceeded that sum, we can not ascertain — all we know, is, that only eight hundred dollars has yet been collected out of them. From this fact, certainly, no presumption of equity can arise in favor of this claim of set-off. The existence of mere cross demands is no ground for this relief.
Nor does the fact of the Hunters’ insolvency and assignment before the acceptance fell due, of itself, raise an equity of set-off, although it is a circumstance which, in connection with the fact of the existence of a mutual credit, will justify such set-off. Although there is much doubt thrown over this branch of the law, and conflict of authorities, yet we think the true rule to be, that the debt must have existed as a mutual credit, at the time of the assignment to Beckwith, to authorize the set-off. The equity must attach to the demand, and not to the person of the debtor. Judge Story, in 2 JSq. Juris. §1435, says, that “independently of the statutes of set-off, courts of equity, in virtue of their general jurisdiction, are accustomed to grant relief in all cases, where, although there are mutual and independent debts, yet there is a mutual credit between the parties, founded, at the time, upon the existence of some debt due by the crediting party to the other. By mutual credit, in the sense in which the terms are here used, we are to understand a knowledge, on both sides, of an existing debt due to one party, and a credit by the other party, founded on, and trusting to, such debt, as a means of discharging it.” It has been repeatedly said that, in the matter of set-off, courts of equity follow the law, and will not allow set-off in cases where the law will not, unless there be special equities growing out of tbe transaction itself, requiring it; and in this case we discover none.
The decree of the court below must be reversed, and a decree entered for Beckwith, in accordance herewith, with costs.
Manning and Christiancy JJ. concurred. Campbell J. did not sit in this case, having been counsel for one of the parties. | [
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Martin Ch. J.:
The defendants, with some eighty-nine others, formed an association, styled “The Novi and White Lake Plank Road Company,” under the act of 1851. A judgment was obtained against the company by the assignor of the complainant, for work and labor done, and for other indebtedness, to the amount of about three thousand four hundred dollars, and an execution was issued thereon, and returned unsatisfied, except as to the sum of twenty-two dollars. Thereupon this bill was filed against the stockholders, to recover the amount of the judgment. A general demurrer was interposed to the bill, and it is now urged that the bill should be dismissed for want of proper parties; the defendants insisting that all the shareholders should have been made defendants to the suit.
A careful examination of the statute, and a consideration of its purposes, satisfies us that the liability created by the statute is in no sense joint. The section creating it is as follows: “The stockholders of every company incorporated under this act, shall be jointly and severally liable in their individual capacity for all labor performed for such company; and shall also be liable for the payment of the debts of such company for an amount equal to the amount of stock they have severally subscribed or held in said company, to be recovered of the stockholder who is such when the debt is contracted, or of any subsequent stockholder.”' — 1 Gomp. L. p. 6,18, §1916. This section creates no joint liability, co-extensive with the claim of the plaintiff, except in the case of labor performed: in any other case it is confined to the amount of the defendant’s stock. As to the liability for work and labor, it is nol^created by per-, sonal obligation, but by statute; and its character must be ascertained by a consideration of the whole law. Now, it is not contended, nor can it be successfully, as we think, that the complainant, in a case like the present, can not recover against stockholders for labor performed, and. also for debts contracted for other considerations, in the same action; and if such be the case, it follows that the Legislature could not have intended to employ the words “jointly and severally” in their strict technical sense, when applied to the liability for labor, and so as to create the same necessity for making all the stockholders parties, as would exist at law in the case of joint obligors and pro, missors.
This view- is strengthened by a consideration of those portions of the statute which provide for and govern these proceedings in chancery against the individual stockholders, Sec. 1918 of chap. 65 provides, that no such proceedings shall be had against them until after a judgment against the company, and the return of an execution unsatisfied in whole or in part, or until the company shall have been dissolved; and further provides that “Any stockholder who may have paid any debt of said company, either voluntarily or by compulsion, shall have a right to sue and recover of such company the amount thereof, with interest, costs, and ex, penses; and any such stockholder who may have paid as aforesaid, shall have a right to bring an action against, and recover of, the rest of the stockholders, or any one or more of them, the due proportion thereof which such stockholder or stockholders ought to pay; and if such action for contri, bution shall be brought against more than one stockholder, the judgment and execution shall specify the amount to be recovered and collected from each defendant” And sec. •2161 of chap. 73, p. 703, enacts that in cases where the officers and members of a corporation shall be liable for any of ■its debts, or shall be liable for contribution, the same may be recovered by bill in chancery, and that such court “may make all such orders and decrees therein as may be necessary to do justice between the parties.”
Reading all these provisions together, it is very clear that they give to a creditor a right, in a case like the present, to •sue and collect from one or more of the stockholders, the ■amount of his demand; a contrary construction .of the law would, in many, and perhaps in most, instances, render' it impotent to afford a remedy, as the great number of stockholders in many of these associations, their liability to be •scattered all over the country, and the consequences of the -death of any of them, before or pending the litigation} would render a joinder of all frequently an impossibility, and always of so d btful and expensive a natme as to deter a plaintiff from pursuing the remedy. But were the liability of the stockholders to be construed as strictly joint and several, we think the objection for want of parties could not prevail in equity, as it is a well settled rule that when it is apparent that the parties who may be affected by the decree are very numerous, and that to require the joinder ■of ah who may be interested will be virtually to deny any •remedy to a complainant, their joinder will tnot be insisted upon. — See 2 Pet. 483, 487, 488.
The next, and principal, question arises upon the con■struction of the statute creating the liability (§1916, sivpra,). The defendants insist, that, by a correct construction, this section imposes upon the stockholder a liability equal only to the amount of his stock, less the sum paid in thereupon, except for labor performed, for which, it is conceded, he is ■liable, irrespective of the amount of his stock, or the payments thereon-: . that, if the whole stock had been paid in. no liability would exist against the holder of such stock, for general debts, and if but a part had been paid in, then the liability would be determined by the amount remaining unpaid.
The statute can receive no such construction. The stock, when paid in, either wholly or in part, becomes a portion of the corporate property; and as this remedy against the stockholders can only be pursued after judgment against the com-, pany, and the return of an execution unsatisfied, wholly or in part, the presumption is that this has been already reached by the execution, or that it has been otherwise appropriated;. If it has not all been paid in, a court of equity, upon long established and well settled principles, would compel its collection by the directors of the company, as a fund for the benefit of creditors.
The effect of the construction contended' for by the de^ fendants is that the Legislature intended nothing by this, provision, as the stockholders are liable to the extent con-, tended for, by virtue of their subscription, and under the. common law.
It was to extend this liability beyond that incident to. their subscription to the stock, or subsequent purchase, and to impose upon them an additional individual liability to, creditors, that this provision was inserted in the law. They are liable individually, whether subscribers or purchasers, to the extent of their stock, above their liability in their cor-, corporate capacity. Such liability for general debts is precisely the same in character as that for labor performed, with this difference only, that for general debts it is limited to the amount of their stock, while for labor performed for the company it is limited only by the amount of the demand. — See Briggs v. Penniman, 8 Cow. 395.
The decree must be affirmed, with costs.
Christiancy and Campbell JJ. concurred. Manning J,„ did not sit, having been counsel in the cause. | [
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The Chibe Justice:
We think the counsel must exercise his own judgment and discretion in preparing the case for the printer, and we will not interfere unless it clearly appears that that discretion has been abused. In many cases — perhaps in the majority — the whole testimony ought to be printed. | [
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Campbjelu J.:
Vandalia McKinney, a married woman, brought ejectment ha the court below, to recover possession of ce'rtain premises inherited by her.
The defendants set up title under -a foreclosure in chancery of a mortgage made by her during her coverture, and while yet an infant. They showed proceedings in chancery, wherein she and her husband were defendants, from which it appears that a bill was filed by the mortgagees, setting up that this mortgage was made to secure a debt of the husband, and that the property beloiaged 'to the wife. A guardian ad litem was appointed for her, and his default, for want of answer, was taken, and the court refused, on a subsequent motion, to set it aside. A final decree was made June 29th, 1852, for a sale. Plaintiff came of age August 15th, 1852. The property was sold under the decree to some of the defendants in the chancery suit, and the present defendants (plaintiffs in error) claim through that purchase.
The court below held that the proceedings in chancery were entirely inoperative to divest the title of the plaintiff below, and this decision is alleged as error.
We regret that the cause was submitted chiefly on briefs, Avithout a full oral argument, as the questions presented are important, and in some respects novel. We have therefore been compelled to examine them for ourselves, Avithout the aid of a criticism, by counsel, of the cases bearing upon the subject. The proceedings in the chancery suit are of ail extra-. dinary character. The bill showing that the mortgage was made for the debt of another, the invalidity of such an act by an infant was so obvious that a guardian ad litem should have had no difficulty in suggesting the defect to the court. But his failure to do so should not have prejudiced the infant; for the practice has always been perfectly well settled that a court of chancery can not grant a decree even upon his admissions. As against an infant, the case must always be made out by proof.— Thayer v. Lane, Walk. Ch. 200. The whole proceeding is suggestive of the strongest suspicion of improper dealing; for we can not believe that the able judge Avho granted the decree could have had the actual state of the case presented to him. The decree can not be sustained upon any principle whatever. If appealed from, it must necessarily have been reversed. The question before us is, however, whether it can be attacked as invalid. And this is a question of the gravest consequence, involving, on the one side, the sanctity of the decrees of courts, and on the other, the question whether the invalid contracts of infants can, by proceedings during infancy, be placed beyond their power of disaffirmance.
The rule has always prevailed in England and in this country, of giving infants a day in court after their majority. But where a mortgage is in question, and the court, instead of a strict foreclosure, decrees a sale, it has been held in many eases that the infant is bound by such sale. The court of chancery of New York, in Mills v. Dennis, 3 Johns. Ch 367, held this doctrine. It was there decided in connection with the other doctrine referred to, that no decree could be made against an infant without full proof of the case, and that a sale was permitted because the court might deem a sale better for the infant than a strict foreclosure. By reference to the cases there cited, and others since decided, it yill be found that the course was adopted of ordering sales, chiefly .to prevent sacrifices of the infant’s property where the land Avas Avorth more than the mortgage; and upon the principle that the court of chancery had power to convert the estate of' infants from realty to personalty, under its general guardianship over them. This authority does not exist uoav in New York, and the court can not order a sale of infant’s lands for any purpose not authorized by statute. — Rogers v. Dill, 6 Hill, 415. The statutes of Nerv York and of Michigan noAV expressly authorize sales in mortgage cases; and it is to the statutes Ave must look for the authority, and for the effect of such sales. But under the English decisions no case can be found where an attempt was made to charge or affect an infant’s estate by any mortgage or hen created by the infant; and the whole reasoning of the cases is opposed to the idea that such a thing would have been sanctioned for a moment. There is good sense in the rule as they apply it; for if the property is hable, a sale is the only method of realizing- its full value, and a defeasible sale would be almost sure to entan a • great sacrifice. The action of the courts is not based upon the idea that an infant is in all cases liable to be bound by a decree.
The contract sought to be enforced, in, this case, Avas not merely voidable, but actually void. It was a contract to secure the debt of another, and could not be beneficial to the infant. It was also made during coverture. It was held in Thornton v. Illingworth, 2 B. & C. 826, that a contract of .this description could not be affirmed, and that, if ratified, the action could only he on the mere, promise, and did not relate back. It Avas held in Sandford. v. McLean, 3 Paige, 117, and in Cronise v. Clark, 4 Md. Ch. Dec. 403, that a mortgage by an infant feme covert, for the debt of another, was an absolute nullity, incapable of confirmation. A married woman can not bind her lands by any method not authorized by statute, and an infant married woman could not make a statutory conveyance. All of these proceedings took place before the law of 1855, enlarging the powers of married women.
In order to sustain the sale under the decree before us, it is necessary to hold that a contract which is a nullity, and which can not be confirmed by an infant under age, at all, and can only be made valid by a new act, after all disabilities have been removed, is made absolutely and irrevocably binding by the action of a court, while the infant was still under age, and where the only right of appeal given by statute expired before her majority. If such be the law, it is a very singular state of things, and reflects no credit on our judiciary system.
We are not, however, without light upon this subject; ■and while cases like the present can seldom arise, we have decisions on those which are analogous in principle.
In Holford v Pratt, Cro. Jac. 464, it was held that where writ of error lies, an infant can avoid a judgment against him in no other way; but where no writ of error can be had the judgment may be attacked collaterally. The correctness of this doctrine is recognized in Austin v. Charlestown Female Seminary, 8 Metc. 196. And that infants can not be regarded as in laches, for not appealing, is decided in Vallier v. Hart, 11 Mass. 300.
In Cronise v. Clark, 4 Md. Dec. Ch. 403, already referred to, it was held that a married woman, whose mortgage made in infancy was foreclosed in chancery by a special proceeding, was not obliged to appeal from, or move in, that proceeding, but might treat it as a mere nullity. And in England, the decisions in bankruptcy are important in throwing light on this matter. It has been decided in many cases that a minor can not be made a bankrupt, because his trading contracts are not for Ms benefit, and are void. — O’Brien v. Currie, 3 C. & P. 283; Ex parte Adam, 1 Ves. & B. 494; Ex parte Henderson, 4 Ves. 163; Ex. parte Barwis, 6 Ves. 601; Ex parte Lees, 38 Eng. C. L. 816. In some cases, where deception or other misconduct has taken place, the court has refused to supersede the commission, and left the party to his legal remedy, not questioning the existence of such remedy. In Belton v. Hodges, 9 Bing. 365, where the infant bankrupt, coming of age, sued the assignee to. recover against him for the property which came into his hands, it was objected that the proper course was to move for a supersedeas. But it was held that, inasmuch as the fiat was granted against an infant, it was a mere nullity, and might be so treated any where.
We think that in the absence of any right of appeal reserved to infants after they come of age, we can not hold a decree valid against them which is made during infancy, upon the basis of their unauthorized contracts, and in which their inheritance is sought to be charged for liens created by them, and not by their- ancestors, or other adult parties. In the case before us, the whole defects of the proceedings are patent on the record, and every purchaser must know that the decree was made against an infant, on an infant’s mortgage, for her husband’s debt. To sustain a title under-such a decree, would be to destroy all the safeguards which the law has devised for the protection of minors against their improvident agreements. While no case can be found which has maintained the validity of such piroceedings, we think the principles underlying the authorities we have re-, ferred to, fully sustain us in our views. We deem it proper, in this connection, to express our regret at the unsatisfactory condition of the law upon chancery appeals. While the limitation on writs of error and certiorari does not begin to run until after majority, and then runs two years, the law gives but forty days in which to appeal from a decree in chancery, and contains no saving clause for infants at all. We have had occasion to perceive great hardships under this narrow rule, and believe that justice requires an amendment of the law.
We think there was no error in the ruling of the circuit judge, and the judgment must be affirmed.
The other Justices concurred. | [
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Campbell J.:
The complainants file their bill for the conveyance of two lots of land in Wayne county, alleged to be held by ’the defendant as devisee of Henry 3. Wilson, deceased. The claim for relief is based upon an agreement which is averred to have been made by Henry J. Wilson during his lifetime, under the following circumstances:
In February, 1853, Charles M. Wilson was the owner of a tract of land lying partly south and partly north of the Grand River Road, the larger portion lying south of the road. The north tract was divided into three lots, the midi die one being a tavern - stand then occupied by George Heath. Henry J. Wilson held a purchase - money mortgage on the whole property, for four thousand five hundred dollars,. On the 21st day of February, 1853, Charles M. Wilson, and Jane Wilson, his wife, conveyed the whole premises to Henry J, Wilson, by a warranty deed. On the 2Yth day of the same month, Henry J. Wilson conveyed the tavern - stand, consisting of about eight acres, to George Heath, taking back a mortgage for four thousand five hundred dollars. In July, 1856, Henry died, seized of the remaining premises, and the defendant was made his universal legatee, and also took out. letters of administration with the will annexed. The com troversy in this case arises upon the lots north of the Grand, River Road, upon each side of the Heath tract.
The bill sets up that Charles M. Wilson, being about to go to California, to be absent for some time, and being desirous of disposing of his remaining interest in the property, which was subject to the mortgage to Henry, and, at the same time, of making some provision for his wife Jane, entered into an agreement with Henry, on the 21st day of February, 1853, to sell and convey to him the whole property, including the Heath tract (which the bill states Charles was bound to convey to Heath), and that, in consideration, thereof, Henry agreed to convey to Heath this tract, and also agreed, immediately, and whenever demanded, to execute to Jane Wilson, wife of Charles, a warranty deed of the two adjacent lots. That in pursuance of this agreement, Charles and his wife made the conveyance of February 21st to Henry, and Henry, also in pursuance of the agreement. conveyed the tavern-stand to Heath, but neglected during his life to convey the other lots to Jane. That Charles immediately left for California, and was absent until June, 1856. The bill also contains statements of possession by Jane and her lessees.
The bill does not state whether the agreement was verbal or written. The answer admits nothing, and puts the whole case at issue.
The defense made upon the hearing was two-fold: First, That the complainants do not prove them case in substance, ‘as alleged; and, Second, That the case which they seek to make is within the prohibitions of the Statute of Frauds and the Statute of Uses and Trusts.
We propose to examine first into the case made by the proofs. As the party in default, Henry J. Wilson, died before the bill was filed, and as Mr. Selkrig, a principal witness, died before proofs were taken, justice to all parties requires that the whole transaction should be carefully investigated.
It is very evident that whatever agreement was originally made between Charles and Henry Wilson, was made on the 21st of February, 1853. The bill alleges this, and Marvin’s testimony confirms it. No witness testifies to any previous understanding. The conveyance being then made, and the bargain announced just after to Marvin and Selk-rig, who witnessed and drew the deed, there can be no doubt that the conveyance and agreement were but one transaction. It is equally plain that when Henry received the conveyance, there was an understanding, not only that he should complete the bargain which Charles had made with Heath, but that the adjoining lots were in some way, •and for some purpose, to be held or disposed of for the benefit of Charles or his wife. And in considering this branch of the case, we must determine whether we have ■evidence showing the whole contract, and, if so, what it Was.
The natural inference from the bill would be that Henry-was to take the fifty acres south of the road in satisfaction of his mortgage, and dispose of the rest as Charles then required, namely, by conveying the tavern-stand to Heath, and doing with the other two lots as was agreed» But the proof showing that Heath was to give, and did give, back a mortgage to Henry, nearly, if not quite, equal in amount to Henry’s mortgage against Charles, leaves the» case as if the whole fifty acres south of the road were a mere gift to Henry, or, what is equivalent, passed without any pecuniary consideration. The 'difference between the-mortgages could not have exceeded three hundred dollars, which would be of no account in making up the price of-the land. These facts are not in accordance with the theory of the bill, and it is not at all likely that this could have been all the arrangement. If such had been the real trans-, action, the magnitude of the gratuity to Henry would have made it probable, at least, that any conversation intended to inform relatives or witnesses of the terms of the arrange-, ment would not have ignored so important an item. The matter is mentioned to Marvin as a trade; and such is the. theory of the case. It is much to be regretted that we. have not more light upon this part of the transaction. If-any other consideration passed between the parties, it might-go far to explain the whole affair.
Leaving this question, and looking simply to the equities, claimed for Jane Wilson upon the two lots in controversy, the inquiry next arises concerning her individual rights — the bill being filed entirely on her behalf. The allegations are, that Charles was about leaving for California, and that the arrangement was made, partly to settle up his affairs with Henry, and partly to make provision for his wife. Such would be an appropriate and natural occasion for a settlement for her- benefit. But, according to the testimony of-the complainant’s witnesses, his intention to go to California was form.ed some, time after the date of this agreement, and — whether formed or not — was not expressed either to his relatives or to those to whom the terms of the bargain were communicated. These witnesses do not connect the original bargain with any allusion to California. And inasmuch as the origin of the provision for Jane is made, by the bill, to spring from the intention of Charles to go there— and such would be a very likely thing to originate it — the evidence should be examined with some regard to this theory.
In looking^ into the testimony, to ascertain what the original bargain was, we are compelled to disregard almost entirely the depositions on behalf of the defendant. They are mainly declarations of Henry Wilson; and 'while the complainants are entitled to prove his admissions, the rule will not allow his declarations to be introduced on behalf of Ms representatives, any more than of himself if he were living. The case must therefore stand, so far as the terms of the contract are concerned, upon the testimony of Mary Wilson (mother of Charles and Henry), George Heath, and Russell Marvin, a brother-in-law of the Wilsons.
Mary Wilson testifies that Henry informed her that, in the trade, he had taken back the south tract, and Charles was to have the two lots, and they were to be deeded to the wife of Charles. She is not asked, nor does she testify, at what time this statement was made to her. Taken alone, it certainly has a strong tendency in favor of the complainant’s case. George Heath, who was informed of the arrangement within a few days, testifies that it was agreed that Charles was to have the lots. The only allusion he heard to Jane was when he applied to Henry to buy the lots, and Henry replied he could not sell them; that they belonged to Charles; that he had not given Charles a deed of them; that Charles was going to California, and, if he never came back, he would give the deed to the wife of Charles. Marvin testifies that on the day the deed was made to Henry, the bargain was stated to Mm by the parties, in presence of Mr. Selkrig. According to that statement, Henry was to allow Charles what he had already received from Heath, and give np the notes and mortgage, and give Charles the land on the north side of the road. No mention was made of its being deeded to any one in particular. But on the night before Charles left for California, which was the 30th of April or the 1st of May, the matter of the property was talked over at a family meeting at Marvin’s, and Henry was to give a deed to Jane whenever she wished it. "
Looldng at the whole case, we can not tvóid the conclusion that the probabilities are in favor of the idea that the disposition of these lots for the separate use of Jane was not determined on until Charles concluded to go to California, and formed no part of the original arrangement. That such an arrangement was finally made, is highly probable, but we can not satisfy ourselves that the testimony goes any further.
With this view of the facts, we can not grant the relief prayed for. Not only must the contract, when resting in parol, be proved in the clearest manner, but it must be substantially the same set forth in the bill. An original agreement to deed to Charles, or to hold subject to his disposal, might stand upon very different legal grounds from an original agreement to convey to Jane. And a subsequent agreement in her favor would also stand on a very different footing from an original one, and would require proof of the considerations which led to it.
The grave questions arising under our statutes touching the validity of any of these arrangements, we do not now propose to consider. They can only be applied with certainty where the facts are well ascertained, and proof is made of a definite agreement. If the parties should be enabled hereafter to procure such proof as will warrant them in seeking relief, those legal principles may come up in a shape to authorize action upon them. We refuse relief in this case because, whether the bargain in question would have been regarded as legal or illegal, it is not made out to our satisfaction by tbe evidence.
The bill must be dismissed, but it may be done without prejudice.
The decree of the court below must be reversed, and a «decree entered dismissing the bill of complaint, with 'costs, ■without prejudice.
The other Justices concurred. | [
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Per Curiam.
Plaintiff Debra Shields, individually, as guardian of the children of James Shields, and as personal representative of the estate of James Shields, filed this cause of action seeking damages for the wrongful death of her husband, decedent James Shields, under the dramshop act, MCL 436.22; MSA 18.993. Following trial, the jury returned a verdict of $325,000 against the alleged intoxicated person, defendant Patrick Grandstaff, but found no liability on the part of Joseph Reddo, individually and doing business as Joe’s Moravian Lounge, and Ohio Casualty Insurance Company. Judgment was entered in accordance with the jury’s verdict. Plaintiff appeals as of right claiming:
I. The trial court erred in excluding the deposition of Patricia Dudash, a barmaid who was employed at Joe’s Moravian Lounge; and
II. The trial court erred by failing to instruct the jury on plaintiff’s requested additional instructions.
We affirm.
Although somewhat disputed, the essential facts are as follows. On April 10, 1980, defendant Grandstaff went to Joe’s Moravian Lounge at approximately 8:00 p.m. Seated at the bar, he drank approximately six beers from the time he arrived to the time he left at approximately 1:30 a.m. on April 11, 1980. At approximately 2:30 a.m., Grand-staff drove off 1-75 onto the shoulder of the highway striking and killing plaintiff’s decedent who was on the shoulder repairing a car.
Grandstaff testified that he went straight from the lounge to the accident scene without stopping. However, some evidence indicated that he may have been drinking in his truck between the time he left the lounge and the time of the accident.
i
Plaintiff first contends that the trial court erred in excluding the deposition testimony of Patricia Dudash, a barmaid at the lounge. Dudash’s deposition testimony was that defendant Grandstaff was intoxicated while at the lounge and, although not served by her, was served by other lounge employees.
Depositions may be used as long as they are admissible under the rules of evidence. MCR 2.308(A)(1), formerly GCR 1963, 302.4(3). Kueppers v Chrysler Corp, 108 Mich App 192, 205; 310 NW2d 327 (1981), lv den 414 Mich 863 (1982); Fassihi v St Mary Hospital of Livonia, 121 Mich App 11, 13; 328 NW2d 132 (1982). The party seeking admission bears the burden of proof under this court rule. Valley Nat’l Bank of Arizona v Kline, 108 Mich App 133, 141; 310 NW2d 301 (1981); Fassihi, supra, p 13. The admission of such evidence is within the trial court’s discretion. Socha v Passino, 405 Mich 458, 471; 275 NW2d 243 (1979); Fassihi, supra, pp 13-14.
The pertinent provisions of MCR 2.308(A)(1) state:
(1) At the trial, or the hearing on a motion, or a preliminary proceeding, a part or all of a deposition so far as admissible under the rules of evidence may be used against a party who was present or represented at the taking of the deposition or had reasonable notice of it, in accordance with any of the following provisions:
(b) The deposition of a party or anyone who at the time of the transaction or occurrence out of which the action arose or at the time of taking the deposition was an officer, director, employee, or agent of a party may be used by an adverse party for any purpose.
(c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
(iii) that the witness is at a greater distance than 50 miles from the place of trial or hearing.
In this case, the trial court refused to admit Dudash’s deposition, finding that plaintiff had failed to establish that Dudash was "unavailable” within the meaning of the rules of evidence or MCR 2.308(A)(l)(c)(iii).
On appeal, plaintiff contends that the trial court based its ruling on an incorrect statement of law. Specifically, the court stated that "according to the Rules of Evidence if the party is available and within 50 miles the Court’s going to rule that you cannot use it [the deposition].” In making its ruling, the court cited Lenzo v Maren Engineering Corp, 132 Mich App 362; 347 NW2d 32 (1984), lv den 419 Mich 937 (1984). Although that case dealt with the rule that admissions, which were contained in the deposition of one defendant, were not admissible as substantive evidence against a code-fendant, the Court also stated that the admissibility of depositions of an opposing party is controlled and limited by the rules of evidence. Although the trial court’s ruling was somewhat conclusory and confusing, the substance of the holding was correct.
Plaintiff’s request to admit Dudash’s deposition into evidence was brought pursuant to MCR 2.308(A)(1)(b). Noting the language of the court rule stated above, we reiterate that a deposition may be used against a party who is present or represented so far as admissible under the rules of evidence. Although under subsection (l)(b) Dudash was an employee of defendant at the time of the transaction or occurrence out of which the action arose, her deposition testimony is inadmissible hearsay evidence. MRE 801(c). Plaintiffs argument that the deposition testimony is not hearsay since it constitutes an admission by a party opponent under MRE 801(d)(2)(D) is meritless since that rule provides that such a statement be made by a party’s agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship. Here, it is undisputed that Dudash was no longer employed by defendant when her deposition testimony was taken.
Second, Dudash’s deposition testimony is not admissible as former testimony under MRE 804(b)(1) since plaintiff failed to establish that Dudash was unavailable within the meaning of that rule.
For the same reason Dudash’s deposition testimony may not be used under MCR 2.308(A)(l)(c)(iii). Under that rule, deposition testimony may be used by a party only after that party demonstrates that the witness was either unavailable within the meaning of MRE 804(a) and (b)(1) or MCR 2.308(A)(l)(c)(iii). See Beachum v Bay Valley Associates, 120 Mich App 412, 419; 328 NW2d 54 (1982), lv den 418 Mich 853 (1983). Since plaintiff failed to make such a showing, the trial court properly excluded Dudash’s deposition testimony.
ii
Plaintiff also contends that the trial court erred in failing to give the three special jury instructions she requested. The trial court declined to give the requested instructions on the basis that the standard jury instructions already covered the areas covered by the special instructions. We agree.
When the standard jury instructions do not adequately cover a particular area, the trial court is obligated to give additional jury instructions when requested where those instructions properly instruct on the applicable law. Eide v Kelsey-Hayes Co, 154 Mich App 142, 150; 397 NW2d 532 (1986). It is within the trial court’s discretion whether a proposed instruction is applicable and accurately states the law. Id.
In Johnson v Corbet, 423 Mich 304; 377 NW2d 713 (1985), the Supreme Court indicated that a requested instruction need not be given if the instruction would simply add nothing to an otherwise balanced and fair jury charge. Id., p 327. In the instant case, plaintiffs additional requested instructions would , have added nothing to an already balanced and fair charge since those instructions were covered by SJI2d 75.03. Hence we conclude that the trial court did not abuse its discretion in refusing plaintiffs additional instructions.
Affirmed.
The route Grandstaff took was only a twenty minute drive, leaving an unexplained forty minute gap between the time Grandstaff should have reached the accident site and the time he actually arrived. One of the investigating police officers testified to seeing open beer in the cab of GrandstafFs truck which later disappeared. In the bed of GrandstafFs truck were about thirty empty beer cans. The window at the back of the truck cab was slightly open. Grandstaff denied drinking any beer between the time he left the lounge and the accident.
1. The proof in a Dram Shop [sic] case does not depend upon Defendant’s fault. The basis of liability asserted against the Defendant bar owner is pur[ely] statutory and does not depend on proof of intentional wrong doing [sic] or negligence. However, as careful as a tavern owner may be, if he makes an unlawful sale that contributes to Plaintiff’s injury, he is fully liable. See Duncan v Beres, 15 Mich App 318, 331; 166 NW2d 678 (1968).
2. There has been a claim that the defendant, Patrick Everett Grandstaff, consumed intoxicating liquor after leaving Joe’s Moravian Lounge. Under the Dram Shop Act [sic], a tavern which by an unlawful sale contributes to a particular intoxication, is liable for damages caused during that intoxication by the intoxicating [sic] person. Accordingly, even if you find the Defendant, Patrick Everett Grandstaff, would not have been intoxicated at the time of the accident, except for the drinks that he consumed after he left the Defendant’s tavern, the liability of the tavern continues as long as there is no break in the intoxication between the time preceding the illegal sale and the time of the accident in which James Shields received his fatal injuries. See Mason v Lovins, 24 Mich App 101, 114; 180 NW2d 73 (1970).
3. In an action under the Dram Shop Act [sic] you may find that a casual [sic] relationship existed between the Defendants [sic] Patrick Grandstaffs intoxication and a subsequent automobile accident where the record discloses that there are sufficient facts and permissible [inferences] which you could reach such conclusion. See Podbielski v Argyle Bowl, Inc, 44 Mich App 280, 286; 205 NW2d 240 (1973), aff'd 392 Mich 380; 220 NW2d 397 (1974). | [
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Per Curiam.
On June 6, 1984, plaintiff, William E. Peters, conservator of the estate of Melvin C. Jones, a legally incapacitated person, filed a complaint against defendant Bay Fresh Start, Inc., a non-profit halfway house, alleging negligence, nuisance, third-party beneficiary rights and strict liability. The complaint alleged, inter alia, that as a direct and proximate result of Bay Fresh Start’s carelessness and negligent behavior, two residents of the center, Frederick Lutz and Joseph Jacobs, were able to leave the facility during the early morning hours of May 16, 1982. They then proceeded to burglarize the residence of Dr. Melvin C. Jones, during which burglary Jones was assaulted and received massive, compound and depressed fractures to his skull, resulting in permanent and incapacitating injuries. It appears that the two convicts, Jacobs and Lutz, were roommates and that Lutz was employed at the time of the incident at Jones’ residence as a yardman.
On September 10, 1984, plaintiff served subpoenas on Donald Bauer, a probation officer, and Donald Seidel, his supervisor, asking for presen-tence investigation reports and records concerning the two convicts. Both Bauer and Seidel filed a motion for a protective order, arguing that the records and reports were subject to a statutory privilege and, thus, could not be inquired into. On January 3, 1985, plaintiff filed his first amended complaint, adding Donald Bauer as a defendant and alleging that Bauer had breached a duty not to make the referral of felons who were overly aggressive, destructive or violent, and a duty to disclose to the center’s employees the juvenile histories of convicts being evaluated by Bay Fresh Start. Specifically, the complaint alleged that Bauer knew or should have known of Jacobs’ history of aggressive, destructive and violent behavior, especially his juvenile record, and that such information was in the presentence information report. Jacobs was serving a sentence for larceny from a motor vehicle at the time he began participating in the Bay Fresh Start program. On March 1, 1985, plaintiff filed a second amended complaint, alleging that Bauer breached his duty by not evaluating Jacobs or by misleading Bay Fresh Start as to his knowledge of Jacobs’ suitability for the program.
On April 16, 1985, the Bay Circuit Court entered a written order denying the motion for a protective order, except as to those portions of presen-tence reports, investigations and case histories prepared by Bauer or other probation officers regarding Joseph Jacobs and Frederick Lutz which constituted confidential communications related by Jacobs or Lutz. The court further ordered that it would make an in camera inspection of portions of the reports to determine whether the material was privileged and the further applicability of the order. The court also certified the order for appeal and stayed all discovery proceedings regarding the contested material. This Court granted Bauer leave to appeal on this issue, which constitutes the subject matter of Docket No. 84782. Donald Seidel appeals as of right from the same order.
In an opinion dated December 18, 1985, the trial court granted Bauer summary disposition pursuant to MCR 2.116(C)(7) and (8), holding that Bauer was under no duty to disclose, was acting within the scope of his employment and had governmental immunity from tort liability. Plaintiff appealed from this order, forming the subject matter of Docket No. 90360. On April 8, 1986, these appeals were consolidated for purposes of appeal.
In Docket No. 84782, defendant Bauer argues that the trial court should have held that all of the presentence information reports and records were privileged and not subject to discovery, rather than holding that only those parts which constituted confidential communications were privileged. Bauer’s argument rests largely on MCL 791.229; MSA 28.2299, which provides:
All records and reports of investigations made by a probation officer, and all case histories of probationers shall be privileged or confidential communications not open to public inspection. Judges and probation officers shall have access to the records, reports, and case histories. The probation officer, the assistant director of probation, or the assistant director’s representative, shall permit the attorney general, the auditor general, and law enforcement agencies to have access to the records, reports, and case histories. The relation of confidence between the probation officer and probationer or defendant under investigation shall remain inviolate.
The language of this statute would seem to be absolute, barring disclosure and, therefore, discovery of the documents sought by plaintiff. As plaintiff points out, however, there are cases which carve out exceptions to this rule. For example, in People v Terry Burton, this Court held that testimony regarding the substance of a phone conversation between a probation officer and a defendant, made outside of the scope of the officer’s statutory responsibility, was admissible at trial. The Court reasoned that the statute expressly limits the privilege to records, reports and case histories, and that the confidence stated to exist between the probation officer and probationer only applied to probationers and defendants "under investigation.”
In People v Rohn, this Court reversed a defendant’s conviction because, inter alia, the trial court had withheld presentence reports of three prosecution witnesses, all accomplices in the crime. The defendant had sought access to those reports for impeachment purposes. The Court said of the statute preserving the confidentiality of presentence reports that it "may directly conflict with the equally protected rights of confrontation and impeachment through prior inconsistent statements. . . . Where there is such a conflict, we believe that confidentiality must give way to other stronger interests.” The Court went on to say that impeachment because of bias and attacking the credibility of a witness’ information are both so necessary to the right of confrontation that they outweigh statutory confidentiality. The Court concluded, however:
This does not mean that defendants should re ceive wholesale access to the confidential records of others. We hold only that when records of prior inconsistent statements of witnesses are necessary for effective cross-examination, they should be made available to the defendant. An in camera inspection procedure should be utilized by the court to limit disclosure to those statements materially inconsistent with the witness’s testimony.
Plaintiff asserts that access to the court system to seek redress for civil wrongs is a fundamental constitutional right, citing both US Const, Am XIV, and Gale v Providence Hospital. While there may be some limited merit in this assertion, we do not believe that plaintiff’s right of access to the courts was denied by the ruling regarding the confidentiality of the material sought. Plaintiff has access to the courts; what he does not have is unrestricted access to all information of every kind, no matter how private, which he believes might bolster his case.
We think this case is more analogous to Havens v Roberts, in which an insurance company sought information included in a probation officer’s report in order to avoid liability for the actions of its insured who had committed a crime. The Court held that under the statute the probation officer’s files were absolutely privileged and could not be the subject of discovery. The insurance company was limited to presenting admissible nonprivileged evidence to support its allegations.
Like the Havens Court, we believe that the language of the statute is absolute. We agree with Rohn, supra, that there are some constitutional rights which may supersede the privilege, but the interests asserted by plaintiff here hardly compare with the right to confrontation in criminal cases. It is, of course, possible that the Legislature intended only to protect probationers and informants, so that the privilege would not apply when neither a probationer nor an informant, but only a probation officer, requested nondisclosure. The language of the statute itself contains no such proviso, however. We reverse the trial court in Docket No. 84782 insofar as it held that any of the probation officer’s records or reports were discoverable.
As to the grant of summary disposition appealed from in Docket No. 90360, we note that the trial court reached its decision both because defendant Bauer had no duty to disclose and because he had governmental immunity. If either of these grounds is sound, we must affirm that decision.
The test for governmental immunity of lower-level officials, employees or agents was defined by the Supreme Court in Ross v Consumers Power Co (On Rehearing). Since that time, 1986 PA 175 was enacted, specifying a new standard for such immunity in its revision of MCL 691.1407; MSA 3.996(107). It is clear, however, that Ross, rather than 1986 PA 175, applies to cases pending in trial courts or on appeal on January 22, 1985, and to those causes of action which accrued before July 1, 1986. This is such a case, so that we must apply Ross rather than the new statute.
Ross defined the test 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.
As in most cases, there is little difficulty disposing of the first two parts of the test. Plaintiff has alleged that Bauer’s actions occurred as part of his responsibilities as a probation officer. Neither of plaintiff’s amended complaints alleged bad faith on Bauer’s part, and even on appeal plaintiff merely says that Bauer’s good faith "is in issue” because Bauer allegedly told the director of Bay Fresh Start that there was no reason Jacobs should not be in the program. As is often the case, the difficult part of the analysis centers on whether Bauer was performing a discretionary or ministerial act. There is seldom an obvious answer to this question, the determination of which often depends on the characterization of the activity involved. In one sense, the more narrowly the activity is defined, the more likely it is to be held to be ministerial. The more broadly it is defined, the more likely that it will be held to be discretionary. To help guide our discussion of this issue, we return to the language of Ross:
"Discretionary” acts have been defined as those which require personal deliberation, decision, and judgment. . . . 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 "deci-sional” 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. . . . 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 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. [Citations omitted.]
Plaintiffs second amended complaint is couched in terms suggesting that Bauer did not evaluate Jacobs and then misled Bay Fresh Start regarding his knowledge of Jacobs’ suitability. Plaintiffs first amended complaint, however, in language not changed by the second amended complaint, alleged that the information necessary for a full evaluation, specifically Jacobs’ criminal and juvenile history, was present in the presentence investigation report which Bauer himself prepared. It is, therefore, clear that the specific acts complained of are not Bauer’s nonperformance of an evaluation, but the performance of an evaluation ending in the wrong recommendation. That is, plaintiff thinks that Bauer, given the information available to him, should have told Bay Fresh Start that Jacobs was not suitable for placement there, rather than that he was suitable.
There have been several cases attempting to clarify the line between ministerial-operational acts and discretionary-decisional acts. In Brown v Northville Regional Psychiatric Hospital, for example, this Court held that medical decisions are discretionary in nature, while execution of those decisions is a ministerial act. In Justice v Michigan, this Court held that the failure of individual dss employees to comply with an administrative order of a dss hearing officer would have constituted ministerial acts, had those individuals been named as defendants. The Supreme Court later modified the decision to allow an amended complaint against those individual employees.
It is also reasonably well established that the failure to follow established procedures or policies is a ministerial act in certain circumstances. For example, the Supreme Court in Bandfield v Wood said that the failure to follow established procedures in supervising others and in seeing that medicines in a prison’s first-aid area were not tampered with both amounted to ministerial acts. In Rathbun v Starr Commonwealth for Boys, a case with certain similarities to the instant one, dss employees processed an exception request allowing a juvenile offender to be placed in the Starr Commonwealth for Boys. The plaintiff alleged that they failed to follow dss regulations requiring placement of the particular offender in another facility and that they failed to obtain full information about the offender and to include that information in the request. The Rathbun Court said that the decision to place the offender at the facility was a discretionary one, but that the acts of placing proper information on the request form and assuring that adequate information was acquired in processing the exception request were ministerial acts. More particularly, the Court pointed out that the plaintiff was not alleging that the defendants had made the wrong decision, but, rather, that, under established policy, they had no discretion to approve the request.
In this case, plaintiff believes that Bauer made the wrong decision in concluding that Jacobs was an appropriate candidate for Bay Fresh Start. While he does allege that one of the "certain criteria” agreed to between Bay Fresh Start and the Department of Corrections was not to refer felons who were overly aggressive, destructive or violent, he does not allege that these "criteria” left Bauer completely without discretion. As a matter of fact, the very use of the terms "criteria” and "overly aggressive, destructive or violent” imply the use of Bauer’s best judgment in making the determination, rather than a rigid set of rules which allow for no decision-making on an individual basis. Under Rathbun, we believe that Bauer’s actions were discretionary-decisional, rather than ministerial-operational. We also believe that this is a sound interpretation of Ross, supra, because the referral or recommendation of a convict to a half way house indeed involves significant decision-making, rather than involving the execution of a decision which might entail some minor decision-making.
There are, however, some anomalous cases of this Court which would seem to hold that negligence always implies a ministerial act. In Davis v Lhim (On Remand), two members of this Court held that a psychiatrist’s failure to exercise reasonable care in the discharge of a patient and the failure to warn the patient’s parents of the danger posed by the patient were not discretionary acts, but ministerial ones. The Davis majority reasoned that the Supreme Court did not intend to shield from liability persons who were faced with doing something permissible or something impermissible "merely because it was a theoretical option.” The majority held that "[a] professional, otherwise liable because he or she has deviated from the appropriate standard of care, cannot contend that he or she had discretion to violate that standard.” Thus, the majority concluded that the psychiatrist was required to be "obedient” to a standard and perform his duties consistent therewith, having "no or little choice” in the matter. Negligent actions of professionals appear, under that reasoning, to be per se ministerial. Judge Cynar dissented, arguing that the decisions of whether to discharge a patient from a mental hospital or to warn his parents involved complex medical discretionary decision-making. He cited Fuhrmann v Hattaway for the proposition that the decisions required of psy chiatrists "are perhaps the ultimate in discretion.”
Davis, supra, on which leave to appeal has been granted by the Supreme Court, has been cited with approval in Vitale v Reddy and the recent case of Bolton v Jones. In Bolton, the plaintiff alleged that both a social worker and a physician had failed to properly inspect, interview and investigate the parent’s psychiatric history, assess stability, or make reports to the court about the danger regarding their recommendations that a child be kept in her parents’ home. The child later was beaten to death by her father. The Bolton Court went even further than the Davis majority, holding that the rule that no one has "discretion” to violate a standard of care applies to professionals and nonprofessionals alike.
It seems to us that Bolton and Davis, if taken together, lead to a conclusion that violation of a standard of care is never discretionary under Ross. This is as much as saying that negligent lower level officials and government employees can never, regardless of the character of their actions, have governmental immunity. If this were the case, then no tort suit against any government employee would ever fail for immunity reasons, as all tort suits allege negligence except those alleging strict liability. In such a circumstance, it would seem superfluous for the Supreme Court to have spent several paragraphs in Ross describing the nature of individual immunity.
As the finding of governmental immunity bars any suit in tort against Bauer for the actions complained of, we do not address the question of whether Bauer owed a duty to Jones, nor whether Bauer’s action or inaction was the proximate cause of Jones’ injuries.
The judgment of the trial court in Docket No. 84782 is reversed; the judgment of the trial court in Docket No. 90360 is affirmed.
74 Mich App 215, 225-226; 253 NW2d 710 (1977).
98 Mich App 593, 599-600; 296 NW2d 315 (1980).
3 Id. at 600.
118 Mich App 406, 411; 326 NW2d 439 (1982).
139 Mich App 64, 67-68; 360 NW2d 183 (1984).
420 Mich 567; 363 NW2d 641 (1984).
Hyde v University of Michigan Bd of Regents, 426 Mich 223; 393 NW2d 847 (1986).
8 Ross, supra at 633-634.
9 Ross, supra at 634-635.
153 Mich App 300, 307; 395 NW2d 18 (1986).
145 Mich App 352, 359; 377 NW2d 417 (1985).
425 Mich 867 (1986).
421 Mich 774, 775-776; 364 NW2d 280 (1985).
145 Mich App 303; 377 NW2d 872 (1985).
147 Mich App 8; 382 NW2d 195 (1985).
Id. at 12.
Id. at 15.
109 Mich App 429, 436-437; 311 NW2d 379 (1981), lv den 414 Mich 858 (1982).
Davis, supra at 19.
150 Mich App 492, 505; 389 NW2d 456 (1986).
156 Mich App 642; 401 NW2d 894 (1986).
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Wahls, P.J.
Plaintiffs appeal as of right from a grant of summary disposition to defendants on a personal injury claim. Central to plaintiffs’ appeal is the question whether, as a matter of law, wholly owned corporate subsidiaries of an injured worker’s corporate employer may avoid tort liability on the basis of the exclusive remedy provision of the Workers’ Disability Compensation Act, MCL 418.101 et seq.; MSA 17.237(101) et seq. Under the facts in this case and after an analysis of these facts in light of the applicable "economic reality” test and of certain equitable considerations, we hold that plaintiff is not barred by the exclusive remedy provision from pursuing damages against the wholly owned corporate subsidiaries. Accordingly, we reverse the circuit court’s grant of summary disposition to defendants and remand the case for further proceedings.
Plaintiff Steve Wodogaza, an employee of Pre ston Trucking Company, Inc., a Maryland corporation, was injured during the course of his employment on May 6, 1981. Plaintiff alleged that he sustained injuries when the forklift he was operating fell or overturned due to actions of a co-worker who was driving a yard transfer tractor. The tractor was owned by defendant S & P Equipment, Inc., and the accident occurred on premises owned by defendant H & R Terminals, Inc. Both S & P and H & R are wholly owned subsidiaries of Preston. Subsequently, plaintiff applied for and received workers’ compensation benefits from Preston and thereafter filed a complaint against defendants, alleging that H & R was negligent in failing to properly maintain its premises and that S & P incurred liability under the owner liability provision in the Michigan Vehicle Code, MCL 257.401; MSA 9.2101.
On September 4, 1985, defendants filed a motion for summary disposition under MCR 2.116(C)(4), lack of subject matter jurisdiction, and MCR 2.116(C)(8), failure to state a claim on which relief can be granted. Defendants contended that plaintiffs’ exclusive remedy for injuries sustained was against Preston, as provided in the exclusive remedy provision of the Workers’ Disability Compensation Act, MCL 418.131; MSA 17.237(131). Defendants maintained that Michigan law does not recognize claims of a parent corporation’s employee against wholly owned subsidiaries of the parent corporation. In support of their position, defendants relied heavily on Wells v Firestone Tire & Rubber Co, 421 Mich 641; 364 NW2d 670 (1984). Plaintiffs, also relying heavily on Wells, argued that Preston alone was the employer in this case and that, as such, Preston alone was entitled to the protection of the exclusive remedy provision. On October 25, 1985, Wayne Circuit Judge Charles Kauffman, stressing that defendants were wholly owned subsidiaries of Preston and that Preston had "complete dominion over everything,” granted defendants’ motion for summary disposition, apparently under MCR 2.116(C)(8).
The standard of review employed by this Court regarding a circuit court’s grant of summary disposition pursuant to MCR 2.116(C)(8) is well settled:
The motion is to be tested by the pleadings alone. The motion tests the legal basis of the complaint, not whether it can be factually supported. The factual allegations of the complaint are taken as true, along with any inferences or conclusions which may fairly be drawn from the facts alleged. Unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover, the motion under this subrule should be denied. [Ortiz v Textron, Inc, 140 Mich App 242, 244; 363 NW2d 464 (1985).]
On appeal, plaintiffs argue that the trial court erred in concluding that defendants, as a matter of law, may avoid liability under the exclusive remedy provision of the wdca. That provision states that the right to recover benefits as provided in the wdca "shall be the employee’s exclusive remedy against the employer.” MCL 418.131; MSA 17.237(131). Plaintiffs essentially argue that protection under that provision is limited, by its terms, to an "employer,” which, in this case, includes Preston, but not defendants. Defendants respond that they and plaintiff’s employer, their parent corporation, were properly treated as one entity by the circuit court under the authority of Wells. We disagree.
In Wells, the plaintiff was injured in the course of his employment at Muskegon Firestone Auto Supply while changing a tube and tire on a truck rim manufactured by the defendant, Firestone Tire & Rubber Company. At the time of the injury, Muskegon Firestone was a wholly owned subsidiary of defendant Firestone. All of the subsidiary’s directors were employees of. the parent corporation, and the latter carried the workers’ compensation coverage for employees at Muskegon Firestone. Plaintiff, citing the parent corporation as his employer, filed for and received compensation benefits and subsequently filed a product liability suit against that same corporation. This Court reversed the trial court’s denial of summary judgment to the parent corporation based on the exclusive remedy provision of the wdca, and the Supreme Court affirmed in a 4 to 3 decision. The Supreme Court, applying the economic reality test to the facts in the case, engaged in a "reverse-piercing” of the parent corporation’s corporate veil, concluding that it would be inequitable to deny that corporation the benefit of the exclusive remedy provision. The Court reasoned that if a parent corporation is, under the economic realities of the situation, the true employer of an injured worker, then the parent corporation should not be denied the protection of the exclusive remedy provision merely because the injured worker was employed in name by a subsidiary of the parent corporation.
It is apparent that the instant case presents facts similar to those in Wells: A worker injured during the course of his employment at a wholly owned subsidiary and who received compensation benefits by citing the parent corporation as his employer is subsequently seeking civil damages in circuit court for injuries. In Wells, however, the plaintiff sought damages against the parent corpo ration, whereas in this case damages are sought against the subsidiary corporations. In light of the holding in Wells, this dissimilarity is no surprise. If plaintiffs had sued Preston, the parent corporation, they would clearly have been precluded from recovering based on the Wells rule.
The majority opinion in Wells emphasized that the economic reality test is appropriate for determining "which of the two separate corporations, parent or subsidiary, was plaintiff’s actual employer for purposes of the Worker’s Disability Compensation Act.” 421 Mich 647. The Court, quoting from Farrell v Dearborn Mfg Co, 416 Mich 267, 276; 330 NW2d 397 (1982), described that test as follows:
The issue of whether employment exists for purposes of the workers’ compensation law has been frequently addressed by our courts. The standard to be used is the economic reality test, a broad approach which, in the oft-quoted language of Justice Talbot Smith, looks to the totality of the circumstances surrounding the performed work.
"Control is a factor, as is payment of wages, hiring and firing, and the responsibility for the maintenance of discipline, but the test of economic reality views these elements as a whole, assigning primacy to no single one.” Schultz v American Box Board Co, 358 Mich 21, 33; 99 NW2d 367 (1959).
See, also, Tata v Muskovitz, 354 Mich 695; 94 NW2d 71 (1959); Askew v Macomber, 398 Mich 212; 247 NW2d 288 (1976); McKissic v Bodine, 42 Mich App 203; 201 NW2d 333 (1972); Nichol v Billot, 406 Mich 284; 279 NW2d 761 (1979); Solakis v Roberts, 395 Mich 13; 233 NW2d 1 (1975); Allossery v Employers Temporary Service, Inc, 88 Mich App 496; 277 NW2d 340 (1979).
The economic reality test looks to the employment situation in relation to the statutory scheme of workers’ compensation law with the goal of preserving and securing the rights and privileges of all parties. No one factor is controlling. [421 Mich 648.]
We have often stated the relevant factors to be considered under the economic reality test:
(1) control of a worker’s duties; (2) payment of wages; (3) the right to hire, fire, and discipline; and (4) the performance of the duties as an integral part of the employer’s business toward the accomplishment of a common goal. Lambard v Saga Food Service, Inc, 127 Mich App 262, 270; 338 NW2d 207 (1983), lv den 419 Mich 958 (1984); Askew v Macomber, 398 Mich 212, 217-218; 247 NW2d 288 (1976). [Nezdropa v Wayne Co, 152 Mich App 451, 465; 394 NW2d 440 (1986).]
See also Parkkonen v Cleveland Cliffs Iron Co, 153 Mich App 204, 209; 395 NW2d 289 (1986), and White v Central Transport, Inc, 150 Mich App 128, 130; 388 NW2d 274 (1986). Application of these factors to the facts in this case does not lead us to the conclusion that defendants are plaintiff Steve Wodogaza’s employer and therefore entitled fo the protection of the exclusive remedy provision of the WDCA.
Defendant H & R Terminals, Inc., was organized solely for the purpose of owning land and leasing it back to its parent corporation, Preston Trucking Company, Inc. Defendant S & P Equipment, Inc., was organized for the purpose of owning equipment and leasing it back to Preston. Neither of the wholly owned subsidiaries had any employees other than their statutorily required officers, and their offices and activities were controlled by Preston. Neither carried workers’ compensation coverage. There is no intimation that anyone other than Preston exercised control over plaintiff, paid his wages, or was responsible for the imposition of discipline. Under these circumstances, it seems clear that Preston, and neither S & P nor H & R was plaintiffs employer.
Nevertheless, defendants maintain that they are entitled to the protection of the exclusive remedy provision, which is available under the wdca to "employers.” Their argument is based essentially on the Wells Court’s willingness to reverse-pierce the corporate veil of the defendant in that case, with the result that the separate identities of the parent and subsidiary corporations were disregarded. In Wells, the majority was willing to disregard the separate corporate identities of Firestone and its wholly owned subsidiary "premised upon our recognition of the important public policies underlying the Michigan Workers’ Disability Compensation Act and on belief that a contrary determination would be inequitable under the facts of this case.” 421 Mich 651. The Court noted that it would not have permitted the parent corporation to shield itself behind its wholly owned subsidiary in order to avoid payment of workers’ compensation benefits to plaintiff, and that, correspondingly, the parent corporation was entitled to receive the benefit of the wdca’s exclusive remedy provision. The instant defendants contend that the same equities exist in this case and that they too are deserving of protection under the exclusive remedy provision even though such protection would require the disregarding of the separate corporate identities of Preston and defendants.
We find the following passage from Wells instructive on this issue:
We recognize the general principle that in Michigan separate entities will be respected. See Klager v Robert Meyer Co, 415 Mich 402; 329 NW2d 721 (1982), Finley v Union Joint Stock Land Bank of Detroit, 281 Mich 214; 274 NW 768 (1937), and Gledhill v Fisher & Co, 272 Mich 353; 262 NW 371 (1935).
However, the fiction of a distinct corporate entity separate from the stockholders is a convenience introduced in the law to subserve the ends of justice. When this fiction is invoked to subvert justice, it is ignored by the courts. Paul v University Motor Sales Co, 283 Mich 587, 602; 278 NW 714 (1938). This of course means that, in general, even though Firestone is the parent company of Muskegon Firestone, its separate existence will be respected, unless doing so would subvert justice or cause a result that would be contrary to some other clearly overriding public policy. See, e.g., Cinderella Theatre Co, Inc, v United Detroit Theatres Corp, 367 Mich 424; 116 NW2d 825 (1962).
Although traditionally the doctrine of "piercing the corporate veil” has been applied to protect a corporation’s creditors, or other outsiders, where the corporate entity has been used to avoid legal obligations, People ex rel Attorney General v Michigan Bell Telephone Co, 246 Mich 198; 224 NW 438 (1929), Michigan courts have recognized that it may be appropriate to invoke the doctrine for the benefit of a shareholder where the equities are compelling. See, e.g., Montgomery v Central National Bank & Trust Co of Battle Creek, 267 Mich 142; 255 NW 274 (1934). [421 Mich 650-651.]
The circumstances in Wells clearly suggested that equity would not be served by failing to treat Firestone as plaintiff’s employer for purposes of the exclusive remedy provision. Firestone was determined to be plaintiff’s employer under the economic reality test, and plaintiff himself disregarded the corporate distinction between Firestone and its subsidiary in asserting that the former was his employer for the purpose of obtaining workers’ compensation payments. For these same reasons, the instant plaintiff would be precluded from suing Preston. It does not, necessarily follow, however, that a preclusion from suing the parent corporation under an economic realities analysis also mandates a preclusion from suing the parent’s subsidiary corporations.
First, the equities involved in these two instances are not identical. Most significantly, the subsidiaries in this case are seeking to shield themselves from tort liability without having assumed any concomitant liability for the payment of workers’ compensation benefits. Defendants have never accepted any responsibility for the work-related injuries of their parent’s employees. Second, as noted by the majority in Wells, the general principle in Michigan is that separate corporate identities will be respected, and thus corporate veils will be pierced only to prevent fraud or injustice. In the present case, defendants point to no injustice resulting from our recognition of their nonemployer status, as determined under an economic reality test analysis. Liability alone constitutes no such injustice. Indeed, if negligence on the part of one or both of the nonemployer subsidiaries in this case brought about plaintiff’s injuries, injustice would result by failing to permit plaintiff to seek compensation against the proper tortfeasor or tortfeasors. Third, we are not unmindful that, as pointed out by Justice Levin in his dissent in Wells, the vast majority of states do not extend the reach of the exclusive remedy provision of a workers’ compensation act by treating parent and subsidiary corporations as a single entity. 421 Mich 657. Rather, as recognized by the majority in Wells, courts generally respect the separateness of corporate entities.
We are aware that manifold business, financial, practical, and perhaps even esthetic considerations may move a corporate entity to diversify its struc ture through the creation of subsidiary corporations. Within those considerations, however, should be a recognition of the obligations which arise as a consequence of such diversification. As noted in Boggs v Blue Diamond Coal Co, 590 F2d 655, 662 (CA 6, 1979), "The owners may take advantage of the benefits of dividing the business into separate corporate parts, but principles of reciprocity require that courts also recognize the separate identities of the enterprises when sued by an injured employee.” See Wells, supra at 662. In this case, absent the equitable and overriding public policy considerations present in Wells, we decline to circumvent the general rule by reverse-piercing corporate veils. Under the circumstances in this case, we believe that the general rule and equitable considerations require us to recognize the separate corporate identities of defendants and Preston. Thus, defendants cannot obtain the protection of the exclusive remedy provision of the wdca available to employers, and we reverse the circuit court on this issue.
Plaintiffs also argue on appeal that the bar of the exclusive remedy provision may be superseded by the owner liability provision of the Michigan Vehicle Code, MCL 257.1 et seq.; MSA 9.1801 et seq. That provision states that the owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of the vehicle. MCL 257.401; MSA 9.2101. Plaintiffs stress that defendant S & P owned the vehicle whose negligent operation is alleged to have caused Steve Wodogaza’s injuries. In light of our conclusion that the exclusive remedy provision does not bar plaintiffs from pursuing damages against defendants in this case, however, we need not address this issue. Moreover, plaintiffs raise this issue for the first time on appeal and thus have failed to properly preserve it for review. Balogh v Flat Rock, 152 Mich App 517, 520; 394 NW2d 1 (1985).
The circuit court’s grant of summary disposition to defendants is reversed and the case is remanded for proceedings consistent with this opinion. | [
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Per Curiam.
Defendant, Robert Lee Beckley, was convicted by a jury of criminal sexual conduct in the first degree, in violation of MCL 750.520b(l)(b); MSA 28.788(2)(l)(b). He brought a motion for judgment notwithstanding the verdict or a new trial, which motion was denied in an opinion filed October 31, 1984. The Muskegon Circuit Court filed its judgment on November 28, 1984, sentencing defendant to serve not less than four nor more than twenty years in prison, with credit given for two days already served. Defendant appeals as of right.
Defendant was convicted of having sexual intercourse with his fifteen-year-old daughter. Accord ing to the daughter’s testimony, the incident occurred on May 29, 1983, while she was living with defendant, who was separated from her mother. Upon defendant’s return home from what the daughter believed to be a bar, he gave her several "french kisses” and rubbed her back. He then went to his bedroom and called for her to come into the bedroom less than thirty minutes later. He asked her to come "lay down with me for a while.” She testified that he pulled her into bed with him, undressed her and had vaginal intercourse with her. The incident lasted for ten minutes, during which the daughter felt pain and bled profusely. She testified that defendant made her promise not to tell anyone.
After the incident, the daughter cleaned herself and telephoned her mother, telling her that "dad was trying to make passes at me,” but declined her mother’s offer to pick her up. Five minutes later, she called back to ask to be picked up. Her mother did pick her up, taking her to her paternal grandmother, where they discussed defendant’s advances without mention of intercourse. During the following year, the daughter told various people about defendant’s advances, but made no mention of the intercourse. Various friends and acquaintances testified that she had told them about the advances, explicitly denying intercourse. She resumed visits with her father after the incident.
In the course of an assigned school project, the daughter handed in a journal which contained an entry dated April 4, 1984, indicating that the daughter had had intercourse with defendant. Her teacher reported this entry to the authorities, resulting in defendant’s being charged with the instant offense.
In his cross-examination of the daughter and again at closing argument, defense counsel raised the inference that the daughter’s actions following the incident, where she did not mention the intercourse to anyone until a year afterwards and then only in a journal entry to a teacher, indicated behavior inconsistent for one who had actually been assaulted. This was especially important because defendant’s version of the facts was in reasonable agreement with the story the daughter told prior to April 4, 1984.
The prosecution called Robin Smietanka, a certified social worker engaged in the counselling of victims of rape, child sexual abuse and incest, who had counselled more than 1,200 child sexual abuse victims since 1976. In addition to counselling, Smietanka indicated that she investigates charges of child sexual abuse, using both experience and the consensus of available literature to identify behavior patterns which may indicate that a child was not, in fact, abused. Smietanka possessed a double master’s degree in psychology and education. She had lectured to professional groups on the subject of child sexual abuse more than fifty times annually. At the time of trial, Smietanka had testified as an expert witness five times in circuit court and between thirty and fifty times in probate court.
Smietanka counselled the daughter on three occasions for an aggregate duration of more than five hours. On direct examination, the prosecutor identified four behavior patterns displayed by the daughter in the aftermath of the incident, asking the witness to assess whether they were inconsistent with the behavior of a child subjected to sexual abuse. The patterns discussed were: (1) the delayed disclosure in the school journal; (2) the medium of disclosure, i.e., to a nonfamily member through an impersonal writing; (3) the daughter’s continued desire to see the alleged offender; and (4) the daughter’s initial tendency to deny to others the occurrence of the sexual abuse. Smietanka said that each of these patterns, and all of them taken together, were consistent, rather than inconsistent, with a child who had been sexually abused. She identified the causes, documented in literature of the field, for each of these apparently incongruous behavior patterns in an abused child. For example, the impersonal writing addressed to a comparative stranger is well documented in the literature and is referred to as leaving a "clue.” It stems from the need to avoid the embarrassment of a face-to-face plea for help.
Defendant argues on appeal, as he did in the full hearing on the question before trial, that Smietan-ka’s testimony should not have been admitted. Defendant argues that this was a kind of scientific evidence which does not meet the standard required for expert testimony and that Smietanka vouched for the credibility of the daughter, or went so far as to suggest that the assault actually occurred. Defendant refers to Smietanka’s testimony as "evidence of rape trauma syndrome,” although Smietanka herself does not seem to have used that term in her testimony.
MRE 702 provides:
If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. [Emphasis added.]
Whether witnesses are sufficiently qualified to render opinions rests within the sound discretion of the trial court and that court’s decision will only be reversed for an abuse of discretion. Three prerequisites must be satisfied before the witness may testify: (1) the witness must be an expert; (2) there must be facts in evidence which require or are subject to expert analysis; and (3) the knowledge of the expert must be in a field where knowledge belongs more to experts than to the common man.
In the recent case of People v Matlock, this Court reversed a conviction which was based, in part, on testimony similar to the testimony below. The rape counsellor in that case was permitted to testify exclusively on the issue of whether it is typical for a sexually abused child to delay reporting the incident or abuse, or to change her story concerning the incident, and was expressly forbidden to testify concerning the child’s credibility. The witness went beyond the scope of the court’s order, however, and testified both as to her personal opinion that children do not lie about sexual abuse and to her experience that she had never encountered a lying child. Importantly, however, the Matlock Court went on to say:
In this case Waters was called upon to testify that a delay in reporting the rape is normal in such cases and this testimony was elicited from the counselor only to counteract the testimony of defendant that it was somehow abnormal for the victim to wait so long to report the incident. We conclude that this testimony could be properly considered by the jury under a cautionary instruction which prohibited the jury from using the testimony about the delay being normal in such cases to prove the existence of the . rape but permitted consideration of that testimony only to explain the delay which was criticized by the defendant. [Emphasis added.][ ]
In this case, there was just such a cautionary instruction below. The trial judge advised the jury:
In this case we had an expert witness .... [S]he has given her opinion as an expert in the field of psychology. As an expert a person is permitted to give her opinion as to matters of which she is an expert. The expert testimony in this case may be considered only as to whether she saw anything in the complainant which was inconsistent with the profile of an incest victim. You should not consider her testimony as bearing on the complainant’s credibility or whether or not in fact the complainant had actually been an incest victim. You are not bound to follow the opinion of any expert. You may give it whatever weight you believe it deserves. In determining whether or not to believe the opinion of an expert, you should consider the reasons and facts upon which she bases her opinion and whether those facts are true. You should consider the qualifications and believability of the expert in light of all the evidence in the case.
Like the court’s order in Matlock, the trial court’s opinion endorsing Smietanka as an expert witness explicitly contemplated defendant’s claim that an incest victim would not have behaved as his daughter did and specifically limited the scope of the testimony to whether Smietanka "saw anything in the complainant which was inconsistent with the profile of an incest victim.” The court specifically forbade Smietanka to testify as to the daughter’s credibility or whether in fact she was an incest victim.
In his third supplemental brief, filed after Mat-lock was published, defendant argues that the cautionary instruction was "internally inconsistent” because it told the jury that "the testimony could be used to evaluate whether the complainant fit the profile of an incest victim.” This, according to defendant, was tantamount to telling the jury that the testimony could be used to determine whether the daughter actually was an incest victim. In the context of the testimony and the instruction, we do not agree that the instruction wjas "inconsistent” as defendant argues.
Defendant says that here, as in Matlock, the witness crossed the line by vouching for the credibility of the daughter. Our review of the record indicates otherwise. In fact, Smietanka pointedly avoided vouching for the victim or saying that she had, in fact, been assaulted, in the face of defense counsel’s efforts to obtain such a statement from her on cross-examination. Unlike the witness in Matlock, who said that she had never seen a child lie about sexual abuse, Smietanka went so far as to point out the sorts of behavior she observed in children who had not actually been abused.
Matlock is consistent with People v Stull, in which a rape counselor was permitted to state that she saw nothing in the complainant which was inconsistent with the profile of a rape victim. The evidence was admitted, as in Matlock and here, to respond to defendant’s issue as to whether a rape victim would have acted as the complainant did, the court noting that such testimony did not amount to expressing an opinion as to the victim’s credibility. These cases are in line with People v Draper, where it was held not to be an abuse of discretion to admit psychological testimony that a child’s behavior was "consistent with behavior of a child who had been sexually abused,” concluding that the child believed she had been abused.
Defendant’s reliance on People v Pullins is misplaced. Contrary to defendant’s assumptions, Pullins is not in conflict with Stull or any of the other cases cited. Pullins stands for the proposition that evidence of rape trauma syndrome is not scientifically reliable as a means of showing that a rape occurred. If such evidence is presented for that purpose, it may not be given the aura of scientific reliability unless it meets the so-called Davis-Frye standard, which governs whether scientific tests are admissible. We have no quarrel with the Pullins ruling; neither, we believe, would the panels in Stull, Matlock or Draper. It is simply inapplicable to this situation. There was no evidence of rape trauma syndrome, but rather of observed child behavior following alleged sexual abuse. The evidence was not presented as a means of showing that the assault occurred, but rather to rebut an inference that the victim’s later behavior was incongruous for an actual victim of child abuse.
The recent case of People v Skinner concurs with our own judgment concerning the applicability of Pullins to this specific, limited kind of evi dence. In Skinner, a psychologist was permitted to testify that the victim’s symptoms were consistent with the victim’s belief that she had been sexually abused. The Skinner Court said that the facts before it were unlike those in Pullins in that the witness did not claim that the victim’s characteristics conclusively established that she had been raped.
Defendant has pointed to numerous cases in other jurisdictions dealing with the admissibility of evidence of rape trauma syndrome. The within case, however, does not deal with rape trauma syndrome. We feel that the law in Michigan regarding the type of evidence offered in the trial court is reasonably firm, as we have discussed above.
To summarize, the trial court did not abuse its discretion in admitting Robin Smietanka’s testimony. A rape counsellor’s testimony is admissible, under established precedent, for the narrow purpose of rebutting an inference that a complainant’s postincident behavior was inconsistent with that of an actual victim of sexual abuse, incest or rape. A cautionary instruction must be given to the jury. The evidence herein fits squarely into these categories.
Defendant raises one additional issue, arguing that he should have been granted a new trial on the basis of newly discovered evidence. The newly discovered evidence offered by defendant was the testimony of Steve Eppart, the daughter’s former boyfriend. Eppart said that in August, 1983, some four months after the incident with defendant, he had sexual intercourse with the victim and could tell that she was still a virgin at that time. The basis for Eppart’s opinion was (1) the victim bled a great deal; (2) the victim was very "tight”; and (3) Eppart had had intercourse with one virgin before. Eppart also said that the victim, at that time, denied having intercourse with defendant. The prosecutor called a gynecologist, Dr. Raymond Cooper, who testified that there were several reasons a fifteen-year-old girl might bleed during intercourse without being a virgin. These reasons included the beginning of the menstrual cycle, vaginal laceration or abrasion, bleeding from the cervix due to the presence of an ectopy and cervicitis, routine bleeding, or even the partial rupture of the hymen from an earlier act of intercourse. Dr. Cooper said that he had never seen an example of the last reason cited.
A trial court’s ruling on a motion for new trial based on newly discovered evidence will not be , disturbed in the absence of a clear abuse of discretion. Defendant himself cites the four-part test he must meet before a new trial will be granted:
(1) the evidence itself, not merely its materiality, is newly discovered; (2) the evidence is not cumulative; (3) the evidence is such as to render a different result probable on retrial of the case; and (4) the defendant could not with reasonable diligence have discovered and produced the evidence at trial.[ ]
We do not believe that the evidence offered could pass the third part of this test, even assuming arguendo that the first, second and fourth parts were satisfied. This evidence would not ren der a different result probable on retrial. We are speaking here of an eighteen-year-old boy whose sole basis for his opinion that the victim was a virgin in August of 1983 is the fact that he allegedly had intercourse with her, saw her bleed and had had sex with a virgin before. The bleeding by itself, as the gynecologist’s testimony indicated, is not probative of anything. There is considerable doubt as to whether this witness would even be competent to render this opinion as to the victim’s virginity, which, after all, is a matter of anatomy and physiology. We have been unable to find a single case where a witness was permitted to testify as to his sexual partner’s virginity at the time of his earliest sexual relations with her based on nothing but his own observations. It seems somewhat ludicrous to us that defendant, who denies that a psychologist with more than 1,200 cases behind her can testify competently, turns around to argue that this teenager ought to be permitted to testify to a physiological fact based on his one previous sexual encounter with a virgin. As to the victim’s alleged statement to Eppart that she had not had intercourse with her father, this would be merely cumulative of the already established fact that the victim denied the intercourse during the first year after its occurrence.
Defendant points out that the trial court based its denial of the motion almost entirely on the rape shield law, MCL 750.520j; MSA 28.788(10). Defendant argues vigorously that the rape shield law does not apply to this particular evidence. This may be so, but we will not reverse a trial court when it reaches the correct result for the wrong reason.
Affirmed.
People v Barr, 156 Mich App 450; 402 NW2d 489 (1986).
Id., p 456.
153 Mich App 171; 395 NW2d 274 (1986).
Id., p 178.
127 Mich App 14, 19; 338 NW2d 403 (1983).
150 Mich App 481, 487-488; 389 NW2d 89 (1986). We note that leave to appeal has been applied for in Draper and held in abeyance pending People v Wesley, Supreme Court Docket No. 77844. However, leave was granted in Wesley exclusively on a sentencing issue which it shares with Draper. 425 Mich 872 (1986). It would seem unlikely, therefore, that the Supreme Court will reach the evidentiary issues discussed herein, when and if it decides Draper.
145 Mich App 414, 420-422; 378 NW2d 502 (1985).
People v Davis, 343 Mich 348; 72 NW2d 269 (1955); Frye v United States, 54 US App DC 46; 293 F 1013 (1923).
153 Mich App 815, 822; 396 NW2d 548 (1986).
See, also, In re Rinesmith, 144 Mich App 475, 481-482; 376 NW2d 139 (1985), holding that use of anatomically correct dolls, which does not meet the Davis-Frye standard, may be used because it does not purport to be a conclusive scientific test for establishing the existence of abuse.
People v Safiedine, 152 Mich App 208, 215; 394 NW2d 22 (1986).
Id., citing People v Somma, 123 Mich App 658, 665; 333 NW2d 117 (1983); see also, People v Barbara, 400 Mich 352, 362-363; 255 NW2d 171 (1977).
People v Perryman, 89 Mich App 516, 520; 280 NW2d 579 (1979). | [
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Per Curiam.
Plaintiff appeals from an opinion and order issued by Genesee Circuit Judge Valdemar L. Washington on August 6, 1986, declaring plaintiff liable under a homeowner’s insurance policy to defend and indemnify defendants in a tort action resulting from defendant Garett Groshek’s assault upon a third party. We hold that plaintiff was not obliged to defend and indemnify defendants under the facts in this case and therefore reverse.
The facts were presented to the trial judge by way of stipulated documentation and briefs. On November 3, 1983, intervening defendant Lori Morse called defendant Garett Groshek (defendant) to tell him of her fear regarding a man named William Badgerow. She said that Bad-gerow, who at one time was her boyfriend, had previously raped her and was going to visit her. Apparently, there existed some sort of relationship between defendant and Morse at this time. When defendant arrived at Morse’s house he saw Bad-gerow standing with Morse, struck Badgerow in the head from behind, and ran off. Subsequently, defendant pled guilty to felonious assault, MCL 750.82; MSA 28.277, based on the incident. In addition, Badgerow filed a civil action against defendant, and the latter sought to have his father’s homeowner insurer, plaintiff herein, provide coverage in that action. Plaintiff filed this declaratory action to determine its obligation under the parties’ insurance contract, contending that liability was avoidable under a policy provision excluding liability for "bodily injury or property damage which is expected or intended by the insured.”
The circuit court found in favor of defendant, determining that defendant had in fact assaulted Badgerow for the purpose of protecting Morse and that such an overriding protective purpose, as a matter of law, removed defendant’s intentional act from the scope of the insurance policy’s exclusionary clause. Although we do not find clear error in the court’s factual finding, we hold that reversal is mandated as a matter of law. Saunders v Dearborn, 107 Mich App 499, 506-507; 309 NW2d 641 (1981).
In support of its holding that defendant’s protective motive vitiated the exclusion-from-coverage provision, the lower court relied solely on Putman v Zeluff, 372 Mich 553; 127 NW2d 374 (1964). In that case, a boy who was camping out on. his father’s property with a friend shot and killed a pedigreed coon-hound- which he mistakenly believed to have been a wild dog attacking him. His parents’ insurance policy excluded coverage for "injury . . . death or destruction caused intentionally by or at the direction of the insured.” The trial court found that coverage existed, reasoning that the boy intended to protect himself from attack and to stop the dog. The Supreme Court affirmed, emphasizing that "By no reading of the record could it possibly be found as a matter of law that [the boy] intended to destroy plaintiffs pedigreed Blue Tick coon-hound.” Id., p 556. In support of its conclusion, the Court cited Morrill v Gallagher, 370 Mich 578, 588; 122 NW2d 687 (1963), in which it was clarified that, under an identical exclusionary provision regarding injury and destruction caused intentionally by an insured, the actual injury—and not merely the act which caused the injury—must have been caused intentionally in order for the exclusion to be operative. Thus, under Morrill, if an insurance policy excludes intentional injury, both an intentional act and an intentional injury must be shown before the insurer may avoid coverage. See State Farm Fire & Casualty Co v Jenkins, 147 Mich App 462, 467, n 1; 382 NW2d 796 (1985); Turner v Burch, 156 Mich App 303, 306; 401 NW2d 355 (1986).
The Morrill line of cases, however, is distinguishable from the instant case because here the parties’ insurance policy does not exclude from coverage merely injury or destruction "caused intentionally by or at the direction of the insured,” but rather excludes coverage for such injury or damage "which is expected or intended by the insured.” In construing the contract language, this distinction "should be constantly borne in mind.” Linebaugh v Berdish, 144 Mich App 750, 755; 376 NW2d 400 (1985). See, generally, Anno: Construction and application of provision of liability insurance policy expressly excluding injuries intended or expected by insured, 31 ALR4th 957, 971-976. In State Farm v Jenkins, supra, pp 467-468, this Court stated:
We believe, where a policy excludes coverage for intended or expected injuries, a distinction should be drawn between the terms "intentional” and "expected.” In order to avoid liability for an ex pected injury, it must be shown that the injury was the natural, foreseeable, expected, and anticipatory result of an intentional act.
The Jenkins panel determined that the trial court in that case correctly found that death or serious injury was the natural, foreseeable, expected and anticipated result of the stealthy and intentional placement of explosives in the deceased’s automobile. In rendering its decision, the panel emphasized that the "expected or intended” language under scrutiny was broader than the mere intentionality language at issue in Morrill and similar cases. Id., p 466; see also Allstate Ins Co v Freeman, 160 Mich App 349; 408 NW2d 153 (1987).
In the instant case, the trial court’s legal analysis did not include an application of the Jenkins rule; indeed, the court’s analysis specifically rejected the application of Jenkins in favor of a rule which we view as being either novel or an extension of the test to be followed in cases with pure intentionality language similar to that in Morrill. In any event, the lower court’s conclusion, that defendant’s overriding protective purpose in safeguarding Morse from being raped served to remove defendant’s intentional act from the scope of the insurance policy’s exclusionary clause, was not based on any consideration of the natural, foreseeable, expected and anticipatory results of defendant’s intentional act. In its written opinion, the court expressly mentioned that, although defendant had stated that he did not intend to hit Badgerow as hard as he did, "we need not reach that issue . . . .” In so holding, the court ignored the Jenkins principles as well as the language of the insurance provision itself, thereby effectively expanding the scope of plaintiff’s coverage. The liability of an insurer, however, is principally gov erned by the obligations in its insurance contract. It is neither reasonable nor just to allow one party to an insurance contract to bind the other to an obligation not covered by the contract as written merely because the first party believed that the other was so bound. Raska v Farm Bureau Ins Co, 412 Mich 355, 363; 314 NW2d 440 (1982). In this case, since the lower court failed to determine whether any expectation of injury existed, it erred in its application of the relevant law.
Moreover, we agree with plaintiff that defendant’s assault on Badgerow falls within the insurance policy’s exclusionary clause, even though defendant did not intend to injure Badgerow as extensively as he did. In Jenkins, the insured made a similar argument, stating that he placed an amount of explosive material in the deceased’s car which he had determined would merely cause a minor explosion. Specifically denied was any intention or expectation that the deceased would be killed by the explosion. According to the insured in Jenkins, he placed a minimal amount of explosive material in the deceased’s car in order to help protect his friend, the deceased’s wife, from further physical abuse from the deceased. In concluding that the insured nevertheless expected to injure the deceased, this Court observed that "one who commits an act that has a natural tendency to cause death or great bodily harm can reasonably expect those results to ensue from commission of the act.” 147 Mich 468.
In this case, whether viewing defendant’s action from a subjective or an objective perspective, we ineluctably conclude that by striking Badgerow in the head from behind with a branch, defendant, at a minimum, expected Badgerow to sustain some injury. In a factually similar case, an insured kicked a man in the nose and afterward argued that he was entitled to coverage despite a policy provision excluding coverage for injury "expected or intended” by the insured. Group Ins Co v Morelli, 111 Mich App 510; 314 NW2d 672 (1981). This Court found that "The injury sustained . . . was the natural, foreseeable, expected and anticipatory result of the intentional act of [the insured].” Id., p 516. In the instant case, although defendant’s motive for intentionally striking Badgerow on the head may have been laudable—namely, the prevention of Morse’s rape—that motive cannot obscure the obvious consequences of such a violent act. Under the circumstances in this case, we need not decide whether the injury sustained by Bad-gerow was an injury reasonably, i.e., objectively, to be expected by defendant as a result of his action or was an injury only subjectively to be expected by him. See Iowa Kemper Ins Co v Kasper, 419 Mich 924, 926; 355 NW2d 109 (1984) (Levin, J.). Under either analysis, we conclude that Badger-ow’s head injury, although perhaps more extensive than that intended by defendant, was the natural, foreseeable, expected and anticipatory result of defendant’s intentional act.
Finally, we also agree with plaintiff that defendant’s guilty plea and related evidence on the charge of felonious assault regarding the incident with Badgerow established the necessary intent or expectation to make the insurance policy’s exclusionary clause applicable. Felonious assault is a specific intent crime. MCL 750.82; MSA 28.277; CJI 17:4:01; People v Joeseype Johnson, 407 Mich 196; 284 NW2d 718 (1979). A conviction for felonious assault requires a showing that defendant intended to injure or intended to put the victim in reasonable fear or apprehension of an immediate battery. People v Robinson, 145 Mich App 562, 564; 378 NW2d 551 (1985). In addition to his guilty plea for felonious assault, defendant’s testimony at an interview established that he intended to injure Badgerow, and even casts grave doubt on the lower court’s finding that defendant was motivated to act as he did based on a protective purpose. In that interview, defendant stated that after Morse told him that she and Badgerow were getting back together, he told Morse that he "was going to beat [Badgerow] up” and told another person that he "was going to smash [Badgerow’s] face . . . break his nose.” He further stated that he had directed Morse to alert him if Badgerow ever appeared, "So I could beat him up.” Moreover, defendant stated that Morse and Badgerow were "talking and kissing” outside Morse’s house when he picked up the tree limb and struck Badgerow in the head from behind.
In State Farm v Jenkins, supra, the insured pled guilty to second-degree murder in connection with the intentional act which resulted in the victim’s death. This Court found that plea dispositive of the expectation-of-injury question in the declaratory action biought by the insurer under an insurance policy’s exclusionary clause for injuries "expected or intended by the insured.”. 147 Mich App 468-469. Similarly, in Yother v McCrimmon, 147 Mich App 130, 134; 383 NW2d 126 (1985), this Court upheld the use of a defendant’s plea-based conviction of aggravated assault under circumstances similar to those in the present case. We believe that an insured’s plea of guilty to a crime involving intentional conduct such as that in the present case dispels any triable factual issue regarding the insured’s intention or expectation to cause injury to the victim. We are therefore persuaded that the defendant in this case was precluded from successfully arguing in the declaratory action below that he lacked the intention or expectation to cause injury to Badgerow.
Accordingly, the circuit court’s judgment is reversed and the case is remanded for entry of judgment in favor of plaintiff.
Reversed.
Subsequently, defendant Garett Groshek was killed in an unrelated motorcycle accident.
In his complaint in his civil action against defendant, Badgerow alleged that as a result of being struck in the head with a stick or log by defendant, Badgerow sustained the following injuries:
[A] cerebral concussion, unconsciousness, fracture of the left frontal maxillary suture line, blowout fracture, left orbital floor and fracture lateral wall left, maxillary sinus, laceration left upper and lower eyelids, ecchymosis and hematomas around the left eye, multiple lacerations of the eyelids, subconjunctival hemorrhage of the left eye, fracture of tooth number nine to the root, damage to the left eye, tripod fracture, left zygomatic complex, open reduction of the communited fracture of the left zygoma, inability to proximate the laterial orbital rim by virtue of the many shattered bone fragments, hemorrhage from the lacerated and shattered areas, pain and suffering to the eye, head, face, past and future, visual disturbance, loss of earning capacity, medical, surgical and hospital expenses past and future, permanent loss of the destroyed tooth, facial disfigura tion, loss of life’s enjoyments, humilation, suffering and anguish. | [
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Champlin, J.
This is an appeal from an order adjudging defendant guilty of contempt in not obeying the order of the court below respecting the payment to complainant of an allowance, during the pendency of the suit, in the nature of temporary alimony and expenses. There are two errors alleged : first, that as complainant had separate property no temporary alimony or expenses are' authorized ; second, that in any event the sum awarded is excessive under the circumstances of the case.
The record shows that the complainant is possessed, in her own right, of real estate of considerable value, but that it is encumbered, and produces an income of less than two hundred dollars annually, and that she has no other income or resource; that the defendant has capital employed in a partnership business of between two and five thousand dollars; and that he derives an income from- his business of about two thousand dollars a year.
Under these facts the defendant relies upon the case of Ross v. Ross 47 Mich. 185. But counsel has entirely misconceived the principle of the opinion in that case. It cer-' tainly affords no support to the position taken by defendant in this case. In Boss v. Boss the complainant nowhere alleged or intimated that she had no property, and for anything-that appeared she might have had abundant means wherewith to support herself and children and carry on the suit ;■ and therefore there was no showing upon which an order for alimony and expenses could be based. Here the complainant has made a satisfactory showing of her financial condition, from which the court can judge of the necessity of making her an allowance 'under the statute for temporary alimony and expenses, and we tliink the court below was fully justified in making the allowance in question.
Upon the second point made against the order appealed from, we remark — -first, that it does not form a valid ground for appeal. The amount to be paid is discretionary with the court below; and nothing short of a plain showing of an abuse of discretion would authorize an appeal from an order made in such case ; and second, we remark further, that the record shows satisfactorily that the sum awarded was not excessive but very reasonable in amount.
The order appealed from must be affirmed with costs, and an extra allowance of fifty dollars on this appeal must be paid by defendant to complainant, and the cause must be remanded to the Superior Court of the city of Detroit for further proceedings.
The other Justices concurred. | [
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Campbell, J.
Complainants filed their bill to enforce a claim by way of mortgage, 'upon a saw-mill and lot in the village of Sterling in Bay county. The case on which they rely is alleged to be substantially as follows: In 1873 complainants and Luther Gordon, deceased, were interested in lumbering and lands, and among other property owned a saw-mill at Sterling, built upon property leased to them by one Morehouse, who lived at Bochester, New York, while James and Luther Gordon had interests and did business at Broekport, New York. After operating this mill awhile, the firm sold it to Rufus and Edwin Whipple for $10,000, payable in sawing, but title was to be retained till paid for.
In 1876 the mill burned up. At this time it had not been fully paid for. Arrangements were then made for rebuilding the mill, and in order to accomplish this it was arranged that the Gordons should furnish money and other help, and Morehouse, who was desirous to have it rebuilt, was to make an absolute conveyance, instead of a lease, and the title was to be put in Luther Gordon’s name to secure the repayment of what should be due the Gordons for the original purchase- and further advances. This conveyance was made, and advances of various kinds furnished, and now the chief contention is whether the whole became a private matter of Luther Gordon’s and not of the firm’s. The Gordons subsequently dissolved partnership, and in the final arrangement a claim of the firm against the Whipples was divided and complainants were given one-half of it, which is the claim now in suit. The whole claim when divided was $3024.08,. which consisted of a balance of $1196.46 on the original purchase price of the mill, the remainder being advances.
The Whipples sold to Luther Gordon their remaining interest in the mill for $2500. He subsequently sold to-defendant Tyler for an álleged price of $4500, a part of which was paid to Luther Gordon, and a part to defendant George O. Gordon, after this suit was begun. Just when-these payments were made is not averred in Tyler’s answer; and he does not there aver that any of them were made without notice, although he denies notice at the time he purchased.
The court below dismissed the bill, and complainants- . appeal.
A preliminary objection is made that there is no case in court at all. This objection is put upon the ground that the suit is prosecuted as one which has been revived, when it is no such suit. The objection did not strike us upon the hearing, and does not now. We shall merely refer to it.
The original bill was filed against Luther Gordon and Tyler on the 21st day of March, 1881, and subpoena issued,. which was not personally served. In September, 1881, a petition of revivor was filed, and on the 3d of October, 1881, an order of revivor was made. A subpoena was subsequently issued against the present defendants, and their appearance was entered, with an order for copy of bill. In January, 1882, a motion was made to set aside the service and appearance, and dismiss the bill, chiefly on the ground that the bill as served did not make the administrator a party, but was against Luther Gordon. This motion was denied. Defendants then answered, issue was joined, and testimony taken.
The basis of this objection is that until a defendant has. appeared the suit cannot be treated as having actually been commenced against him, so that if he dies before appearance it is as if he had never been in the case, and an original bill is necessary to reach his representatives. The citation from Daniell’s Chancery Practice seems to favor that idea. But the authorities and practice have uniformly held that the filing of a bill is the commencement of suit for most purposes, and we can see no reason for adopting any exceptional rule in such cases as the present. An affidavit can always be made in a cause as-soon as the bill is filed, and sometimes becomes necessary to support an order for the appearance of an absentee. A notice of lis pendens may always be filed at once, and it would lead to very serious mischief if a failure to serve process at once on a defendant could nullify the effect of such filing. For many purposes it is not always important whether a bill is a bill of revivor or an original bill in the nature of one. But for some purposes the difference is very material, and rights may be seriously jeoparded by holding a failure to get a defendant in before his death equivalent to a failure to implead him. The evident object of our statute is to hasten the proceedings by allowing a petition to stand in lieu of a bill of revivor, and we do not see any good reason for holding that a suit, if regarded as commenced for any substantial purpose, should not be regarded as commenced so as to save all rights as against the estates of a deceased defendant, appearing or not appearing. No one’s rights are injured by so holding, and important rights may be jeoparded by holding otherwise.
We might put our decision on the ground that any such objection had been waived by appearance. But this may not have been the view taken below, and we deem it best to determine the casé on the general rule. As there was no will, and George C. Gordon comes in as administrator, the revival did not require an original bill for any other reason, and the petition is warranted, as standing in place of a simple bill of revivor.
The case then must be determined on the merits. There .is.very little in it beyond a supposed conflict of facts, and we need not go into any full discussion of them, but may leave the result where in our view the testimony puts it.
There is no dispute but that the mill was, until the burning, bound for so much of the purchase price as was not paid, and that it was originally estimated at $10,000. There is no dispute but that the title in' fee was placed in Luther Gordon as security. It is also not denied that the balance of the old debt was never released, and was recognized as a claim belonging to complainants and Luther, and divided between them. This being so, it is impossible to find any good reason why it should not have been kept secured as well as the debt created for restoring the mill. Whipple’s testimony is clear on this subject, and all the probabilities corroborate him and the others who make this showing. The same may be said as to the fact that the advances made were considered firm advances and not private advances of Luther Gordon. If this were not so, there is no satisfactory explanation how the Whipple .debt to the firm ever reached the sum at which it was reckoned and divided. But there is also full and positive' proof.
It is not inconsistent with this that Luther should purchase the equity of redemption for himself. This could not affect the mortgage rights of the rest of the firm, although it might facilitate the means of fraud if Luther desired to commit fraud.
It is suggested, however, that the price given by him for the equity of redemption exceeds the value of the mill if the entire debt was secured. He gave $2500, which would put the whole value at a little over $5500, or $1000 more than Tyler claims to have paid. But the mill was sold to the Whipples originally for $10,000, and there is nothing to indicate that the new mill was so far inferior in value as this would make it. There is testimony from apparently fair sources which puts the value when sold to Luther at a rate not materially less than that estimated for the first mill. In matters of value there is always room for some difference of .view, but any estimate which cuts it down so low as the alleged price paid by Tyler is quite inconsistent with the •conduct of the parties, — especially when it is considered that the new title was a fee instead of a lease, and seems to have ■covered considerably more ground.
If the Whipple debt was all secured, then there is no room for further difficulty unless Tyler was a bona fide purchaser without notice. As already suggested, his answer does not fairly claim this, and whether it did or not, we think it very -clear that he took the title with sufficient knowledge to cut him off from any such defense. It is made altogether likely that in the family dissensions which existed between Luther and his brothers, the transfer to Tyler was one of the means of vexation. But, however this may be, he was, in our -opinion, sufficiently informed to be bound by complainants’ rights.
It is not clear to us that Luther Gordon was personally liable to complainants for their share of this Whipple debt, although he would undoubtedly be liable for any depreciation of the security caused by his improper dealings with the property. But as Tyler’s interest is subject to this mortgage claim, and the property is therefore forthcoming, we do not ■see any occasion now to pass upon the liability of the estate for any deficiency. As no final decree could be made effective until a deficiency is reported, and a further hearing had upon it, that question will therefore stand reserved.
The decree dismissing the bill must be reversed with ■costs, and the proper foreclosure decree entered for com plainants’ debt, in the usual form. The case to be remanded for further proceedings.
Camp & Brooks for the motion.
Shepard, Lyon & Clark against.
Sherwood and Champlin, JJ. concurred.
Cooley, C. J.,
being disqualified by relationship, did not sit in this case.
Afterwards a motion for re-hearing was filed, which on June 25 was denied in the following opinion.
Campbell, J.
Upon an application for a re-hearing, attention was called to the fact that in fixing the amount of the Whipple debt, as divided between complainants and Luther Gordon, the former was figured - up out of advances made in the original mill business, as well as of the unpaid balance left after applying all of the sawing referred to upon the purchase price. Reference was also made to the fact, not disputed, that in their private arrangements, in order to obviate some unpleasantness among the partners, who were not all on amicable terms, it was arranged that the checks which formed the medium of a considerable part of the subsequent Whipple advances, and some further matters, should be treated as advances made by Luther Gordon, and not by the firm, and this was carried out in the general balancing of their firm transactions. These were all urged with much force on the original argument, and are worthy of great consideration. But we do not think they change the character of the trust.
If the arrangements under which the new mill was built rested merely on the implication that the former lien continued, it would certainly be necessary to show that the old advances were connected in some such way with the application of payments on the mill, as to reduce those payments and leave a larger balance unpaid than the one left by allowing credit directly for all the lumber sawed. It would have been a little remarkable, if it uhad really been understood that tlie cash advanced should be postponed to the other debt, and remain entirely unsecured. But, however this may have been, we think there is no doubt that when the arrangement was made for the new mill, the whole of the old debt was agreed to be secured with the further advances, and we think that when the division was made between the Gordons of the amount of this old claim, it was covered by the security as a result of that arrangement.
The question whether the advances were Luther’s or the firm’s, is only important in the view urged on both arguments that the security for the old debt depended on new advances by the firm as a firm. Beyond this we do not think it material. And it does not strike us as material in that,, unless as connected with the theory that in the new arrangements Luther was the only person concerned. But we do not think this was so. Neither do we think there is any doubt that these advances were regarded, for all the purposes of the Whipples, as firm advances, in pursuance of the arrangement, which were made Luther’s, as among themselves, for personal reasons, but which, nevertheless, fulfilled the conditions on which the security was to stand.
As intimated in our former opinion, we are not prepared on this record to hold that Luther Gordon became directly liable to complainants for this Whipple balance. There seems to be no likelihood that any question of indirect liability will be presented. It cannot be unless a deficiency is reported, and it will be time enough to consider it then.
There is no reason for changing the result ánnounced on the original hearing.
Champlin and Sherwood, JJ. concurred. | [
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Campbell, J.
Hnxford filed his bill to foreclose a mortgage given by Eslow and others, June 14, 1869, for $10,000, payable with 10 per cent, interest on or before ten years from date. A portion of this sum of $10,000 was not advanced until some months after the date of the securities. Payments were made from time to time, and the interest was reduced to 8 per cent. This bill was filed claiming a balance still duo.
Defendant Eslow, who is the only party in interest, answered, insisting that the mortgage had been overpaid, and filed his cross-bill to recover the overpayment, and the statutory penalty of $100 for refusal to discharge the mortgage.
Complainant claims that under the statute of 1869, he is entitled to interest on interest. He also claims that there was subsequently an express agreement to pay it.
While there is some evidence of negotiations, we do not think a subsequent agreement to pay interest is made out. And inasmuch as the contract was made before the statute of 1869 took effect, we think the fact that some advances were made thereafter does not separate the mortgage into two classes of debts. All is governed by the law in force at the-time the contract was made.
The court below gave Eslow a decree for less than he claims to have been the overpayment, and we can see no-ground for this, on the record, unless on the theory of interest on interest. The only computation which appeal’s to-have been made without compound interest indicates the excess to have been $484.95, July 15, 1882. The payment then made was $1000, which complainant insisted left -a balance due, while defendant claims he was induced by repx’esentations, which he could not then verify, to believe there-was a balance against him.
If the parties had ever come to a distinct agreement as to-interest, it is possible it could not be disturbed. But, as we read the record, there was nothing of this sort made in any binding way. Upon the whole facts we do not see how the-conclusion caxi be avoided that complainant was actually paid $484.95 too much, without anything to estop Eslow from insisting on it. The decree should have been for this-amount, with interest froxn July 15, 1882.
We have always declined to enforce the statxitoxy penalty in these proceedings, where the complainant in foreclosure is not guilty of unreasonably refusing a discharge. Here no-bill was filed by Eslow until complainant’s foreclosure suit was begun, and we do not think it appeai-s very clearly that complainaxrt did not honestly suppose he had a larger claim than he turns out to have had. We do not think the penalty should be enforced.
' The decree must be modified so as to require complainant to pay $484.95, with interest from July 15, 1882 ; Eslow to-recover costs of both courts.
The .other Justices concurred. | [
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Champlin, J.
In this case Noah Shepardson filed the will of his wife, Olive L. Shepardson, for probate, in the probate court for the county of Wayne, he being one of the legatees and the executor of said will. At the hearing in the probate court, James C. Potter, the father of Mrs. Shepardson, appeared as a contestant of the will. The probate cpurt refused to admit the will to. probate. Proponent appealed to the circuit court for the county of Wayne, where the will was sustained. Contestant brings error.
The grounds upon which the probate of the will was contested were want of capacity to execute it, and undue influence exercised by Noah Shepardson, the principal legatee and executor.
The record discloses that Dr. Shepardson,. the proponent, was married to the decedent on the 8th day of June, 1882, and that she died July 22d following. She had been, previous to her marriage, a widow, and had been under his treatment as her physician. It also appears that the proponent had, previous to the 'marriage above referred to, been married, and had separated from that wife in 1879. There was evidence going ^o show that in January, 1882, which was some six months prior to the marriage, Mrs. Shepardson, then Mrs. Brunthaver, had made a will while she was at Plainwell, and had sent it to proponent, who was then located at Wyandotte; and that afterwards she had destroyed this will because he was not suited with the disposition of the property she had made. This was before the proponent’s first wife had obtained a divorce from him.
The proponent was called to testify by the contestant, and was allowed to state that there had been talk between himself and Mrs. Brunthaver as early as 1881 about her making a will, but was not permitted to state what was said about it at that time. From statements which he made to her father and mother at the time of his wife’s funeral [it appeared] that there had been an agreement between him and the decedent that they should each make a will in favor of the other, to the effect that whichever should die first the survivor should have the use of the property left by the deceased, during life, and then it should go to the heirs of such de ceased person; and that the will in question was made by her to carry out the agreement. Mrs. Shepardson was taken ill on Wednesday and died on Saturday, at about four o’clock in the afternoon. Proponent was with her alone during Friday night, 'and became satisfied that she was so sick she could not recover about one or two o’clock on Saturday morning. The attorney who drew the will states that he received a message, about eight o’clock in the morning of the day Mrs. Shepardson died, to come to Dr. Shepardson’s drug store; that on arriving there he met proponent, who told him that his wife wished him to draw some papers for her, and took him into the room where Mrs. Shepardson was lying in bed, and introduced him to her, and she stated to him that she wished to make a will; that he sat down by the bed and made a memorandum of how she wished to dispose of her property, and then went to his office and drew the will according to the instructions she had given and the memorandum taken, and returned in about half an hour and read it over to her, and she pronounced it correct and executed it; that Dr. Shepardson was out and in while he was taking the memorandum and while she was executing the will, and asked her about two or three items of property, what she wanted done with them — the things at her father’s, and the lots in Ohio.
The contestant called witnesses and proposed to prove that the deceased was an invalid from the fall of 1880 until the fall of 1881, and that Dr. Shepardson treated her as her physician during that time, and also proposed to show the relations of the deceased and proponent, and that these relations wore brought about by proponent and continued until the fall of 1881; and to establish this proposition he asked a witness these questions: “ Did she ever live at your house ?” “ State whether to your knowledge, at Fremont, in the state of Ohio, Dr. Shepardson attended the decedent as her physician, and what time that treatment commenced?” “Dp to what time did he treat her as her physician ? ” “ Do you know from the doctor’s statement or otherwise, what the malady was for which he treated her ? ” “ State when it was, if you know, that Mrs. Brunthaver came away from Fremont ? ” “ State whether at this time Dr. Shephardson had a wife with whom he was living, and a family of children ? ” “ Iiow long did the doctor treat Mrs. Brunthaver at Fremont, Ohio ? ” “ Do you know what time the doctor left Fremont ?” “ Do you know when Mrs. Brunthaver left Fremont ? ” “ Do. you know whether the doctor and Mrs. Brunthaver came away from Fremont together ? ” “ Do you know how intimate their relations were while she was there at your place ? ” “Do you know when the doctor and his first wife separated, and ceased to live together as husband and wife?” The witness then testified that at that time Dr. Shepardson was acting as business agent for decedent, and counsel for contestant then asked witness, “ Do you know what amount of property she had at that time ? ” All of these questions were severally objected to and excluded as immaterial, the court remarking “that if no marriage had afterward taken place between proponent and deceased the case might stand differently, but as she afterwards married the proponent this made a great diffei’ence.”
The following questions were put to Mrs. Eliza Potter, the deceased’s mother, and objected to as immaterial, and excluded: “ Do you know at what time your daughter became acquainted with him ? ” “ State from what occurred in your presence, whether the doctor had any influence over your daughter ? ” “ How many times was the doctor at your house ? ” “ When was he last at your house ? ” “ What were the relations of your daughter, the deceased, to yourself and your husband, her father and mother ? ” Witness then testified that during the latter part of the year 1881 her said daughter had a talk with her about what disposition she intended to make of her property, and said she intended her property, after her death, should go to her parents — to her mother,- especially; that she spoke of it several times, and the last time was just before she went to Plainwell on a visit, in December, 1881.
Witness was then asked . “ Did you ever at any time see among her papers, a written memorandum, in her handwriting, with reference to her will?” To this question counsel for proponent objected as immaterial, as it was before the marriage to the doctor. Counsel for contestant explained that it was a memorandum as to what disposition she would make of her property The court asked the witness when it was, and she answered that it was before the last conversation about the property. Thereupon the court sustained the objection, and the counsel for the contestant duly excepted.
Witness further testified that the several conversations with the doctor about the will that she had testified to, occurred at Wyandotte, and that afterwards, at the funeral, while she and her husband and the doctor were riding together in a buggy, the doctor said he .promised the deceased that if she would make the will to. him it would only be for a short time; that he could not live long, and that then it should all come back to her parents as she wished it should.
Witness further testified that when her said daughter died there was at witness’ house, belonging to her daughter, a horse, a buggy, a harness, an old robe, some household furniture, some silver ware, carpets and bedding.
Counsel for contestant called as a witness J. C. Potter, who testified that lie was the father of the deceased, and remembered seeing Dr. Shepardson at the funeral, and heard him state to Mrs. Potter that he asked deceased to make a will willing the property to him, and that he told her that after his death it should all go back to her parents as she wished it to; that this was in the buggy, going from the house to the church at the time of the funeral.
While the witness Dr. Shepardson was being examined by counsel for contestant he testified that his wife took proceedings against him to obtain a divorce. He was then asked : “When were the papers served?” This question was objected to and excluded as immaterial. The following questions were asked of the witness Dr. Shepardson and excluded as immaterial, viz: “ Whether he did . not have from deceased a power of attorney to do her business.” “Whether on or about November 1, 1881,he did not enter into an agreement with the deceased with reference to their going into partnership in the drug-store at Wyandotte.” “ Did you ever sketch off a will for her — a draft of a will for her — prior to her making of the will at Plainwell?” “ Did you write to her while at Plainwell, during the holidays of 1881-82, with reference to making a will?”
And finally the judge charged the jury in substance, that there was no evidence of undue influence exercised over decedent when she made the instrument in question, and that as there was no evidence controverting that of the witnesses for proponent'that she was of sound mind, they should return a verdict for proponent, which they did without leaving their seats.
The rule of law which excludes all presumption of undue influence over a person of sound mind requires him who asserts that the instrument ought not to have any force or effect because it was obtained by undue influence, to prove affirmatively that it was so obtained. How can he do this unless he is permitted to show the previous relations within a reasonable period of time, which existed between the parties ? This proof must be made out in most if not in all instances by circumstantial evidence; by proof of facts and circumstances which, standing alone, might prove nothing, but when taken together, and in relation to other facts, might tend to satisfy a jury of the existence of the principal fact of undue influence. Beaubien v. Cicotte 12 Mich. 459; Porter v. Throop 47 Mich. 313, 326.
The learned judge in the court below seems to have based his rulings upon the hypothesis that the inquiry must be limited to the time the marriage relation existed between these parties ; and that whatever may have been their relations previously it was immaterial to inquire. This was confining the scope of inquiry to very narrow limits, and was not justified by the facts and circumstances of the case. The parties were married on June 8th, and Mrs. Shepardson died July 22d, and I can discover no good reason why the inquiry might not have been made to embrace the relations of these parties to each other, both before and after the marriage. If the testimony offered would have a tendency to prove that Dr. Shepardson had acquired an undue influence over the mind of the testatrix before their marriage, and that influence could be traced to the act of making the will, and exercised a control over her disposition of her property, and possessed the quality which brought it within the category of undue influence, it was competent to be shown, and such evidence would be material testimony. The undue influence which operates to defeat a will must be such as overcomes the free action of the mind at the very time of’ making the testamentary disposition of property, but the. pressure may have been brought to bear previously; and if it remained so as to coerce the mind of the testatrix at the time the will was executed, it cannot be upheld as her act. Undoubtedly, the inferences and conclusions to be drawn from the evidence, when the charge of undue influence is in a case-where the will is made by a husband or wife in favor of the other, may be quite different from what it would be when applied to cases between guardian and ward, or other persons standing in fiduciary relations to each other, or between a testator and a person occupying no fiduciary or blood relation. Manifestly, to establish undue influence in persons occupying the relation of husband and wife, the facts and circumstances shown must not only be consistent with the hypothesis of the will having been obtained by undue influence, but it must be shown that they are inconsistent with a contrary hypothesis. And the facts and circumstances must be such that when all the evidence is considered, the jury can say that the acts which constituted the undue influence were such as amounted to coercion or fraud. Boyse v. Rossborough 6 H. L. Cas. 2, 47.
In the present case the will was made when the testatrix was in extremis. The proponent was present during a part of the time, and called her attention to certain portions of her property, and asked her what disposition she wished to make of the Ohio property and the property at her father’s. It appeared also that there had been an ágreement between these parties, made before they were married, that each should make a will in favor of the other, giving to the survivor a life estate in the property, with remainder over to the heirs of the testator or testatrix; that she had executed one will before their marriage in his favor, and that lie had destroyed it at her request. And by the proponent’s own statements, made immediately after the execution of this will, it appears that he claimed that this will was executed to carry out the agreement above referred to, and that the testatrix’s intention was simply to give him a life estate in the property devised to him, and at his death it should come back to her parents. The instrument presented by him for probate reads as follows:
“ I, Olive Lucinda Shepardson, of the city of Wyandotte, Wayne county, Michigan, wife of Dr. Noah Shepardson, of the same place, mindful of the uncertainties of human life, do make, publish and declare this my last will and testament in manner following:
1. After the payment of my just debts and funeral expenses, I give, devise and bequeath to my husband, Dr. Noah Shepardson, all my interest in the drug-store property in Wyandotte, Michigan, to have and use as he shall deem proper during his life-time; and after his death, the proceeds, if any remaining, to go to my next of kin.
2. I give, devise and bequeath to my aforesaid husband, Noah Shepardson, and to his heirs and assigns, forever, the / three lots of land now owned by me at Manhattan, near Toledo, Ohio; and after his death, if there are any proceeds remaining, it is my will and desire that the same shall be given by him to Ida Voltaire of Toledo, Ohio.
3. I give and bequeath to my mother, Eliza Potter, of Erie, Monroe county, Michigan, all my household furniture now at her place, together with all my wearing apparel.
4. I give and bequeath to my father, James Potter, of Erie, Michigan, all the personal property of every name and nature, including money, belonging to me and now in possession of my said father.
5. I give and bequeath to my aforesaid husband, Dr. Noah Shepardson, the rent of the farm at Belleville township, Sandusky, Ohio, which will be due October, 1882.
(5. I hereby nominate and appoint my aforesaid husband, Dr. Noah Shepardson, the executor of this my last will and testament, and hereby authorize and empower the said Noah Shepardson to compound, compromise and settle any claims or demands which maybe against, or in favor of my said estate.
In witness whereof I have hereunto set my hand and seal this 22d day of July, A. D. 1882.
[Signed] Olive L. Shepardson. [l. s.] ”
Instead of devising to him a life estate in her lands, with emainder over to her parents, she by this will gives to him an ¿state of inheritance, and also the absolute power of disposir iion of the personal property mentioned in the first clause. If her intention in making her will was as he states it to have been, then there was a palpable fraud perpetrated upon this dying woman, which no court can tolerate for a moment. The evidence of fraud was. quite sufficient to authorize the introduction in evidence of the testimony which was excluded by adverse rulings to the questions above propounded.
There should have been a broad latitude of inquiry allowed as to the relations existing between these parties, and such inquiry might extend back and cover the entire time of their acquaintance with each other, which, as was claimed, was within three years of the period of her death, so far as those relations, and the facts and circumstances on which they were based, tended to throw any light upon any undue influence exerted over the testatrix by the proponent, which resulted in the will in question.
The contestant introduced the stenographer who took in diort-hand the testimony given by Dr. Shepardson in the probate court, who produced what he claimed was the testimony given by the doctor, written out in English. He-' testified that it was literally correct, and no question as to its being correct was raised by counsel for proponent. The contestant offered to read portions of the transcript of Dr. Shepardson’s testimony in evidence, from page 22, to show admissions made by the proponent on that trial. This was objected to and excluded by the court.
Admissions made by a party to the record, whether upon the witness stand or elsewhere, relative to matters material to the issue, may be given in evidence by the opposite party, and persons hearing the admissions made may be called to prove what was said. And if a person present at the time the admission was made reduces it to writing in the exact language used, and testifies to that fact, and there is no question as to its correctness, I can see no objection to introdu cing the writing itself in evidence1. The object of all testimony is to elicit the exact truth, and that evidence is the best from which all possibility of error is eliminated.
The court rightly excluded the evidence offered relative to the divorce proceedings. The charge there made as a ground for divorce was not admissible evidence under the issue in this case between the contesting parties. The letters offered in evidence, taken in connection with other testimony which ought to have been received as showing the relation between these parties, were admissible-in evidence.
The proceedings of the circuit court are reversed, and the case remanded for new trial.
The other Justices concurred. | [
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Sherwood, J.
The defendant was prosecuted under Act 226, Pub. Acts of 1875 (being How. Stat. §§ 1277-1280), for soliciting and taking orders from citizens of this State for spirituous and intoxicating liquors to be shipped into this State and furnished and supplied at wholesale by a copartnership not a resident of this State, nor having its principal place of business therein, without having first paid the tax required by said Act. The defendant based his defense upon the unconstitutionality of the statute, which reads as follows:
“ Section 1. The People of the State of Michigan enact: That every person who shall come into, or being in this State, shall engage in the business of selling spirituous ánd intoxicating, malt, brewed, or fermented liquors to citizens or residents of this State, at wholesale, or of soliciting or taking orders from citizens or residents of this State for any such liquor's, to be shipped into this State, or furnished, or supplied at wholesale to any person within this State, not having his, their, or its principal place of business within this State, shall, on or before the fourth Friday of June in each year, pay a tax of three hundred dollars if engaged in selling, or soliciting, or taking orders for the sale of such spirituous and intoxicating liquors, and one hundred dollars for malt, brewed, or fermented liquors. Such tax shall be paid to the auditor general, and be by him paid into the State treasury, to the credit of the genei’al fund.
Sec. 2. Hpon the payment of such tax the auditor-general shall issue to such person a receipt therefor, and in case of loss thereof, a duplicate, when required by the person to whom the original receipt was issued. Every person making sales, or soliciting, or taking orders, as in the first section of this act provided, shall exhibit such receipt to every person to whom he makes sale, or from whom he takes or solicits orders for such liquors, and shall exhibit such receipt to any supervisor, justice of the peace, sheriff, under or deputy sheriff, city or village marshal, chief of police, policeman, or constable, when required so to do, during business hours.
Sec. 3. Any person liable to pay a tax under this act, who shall sell any liquors, or solicit or take orders for liquors to be shipped from without this state to any person within this state, furnished or supplied by a person, copartnership, association, or corporation not resident in, or having his, their, or .its principal place of business within this state, without the tax herein provided for having been paid, and having in his possession and exhibiting the receipt therefor, or a duplicate thereof; and any person residing or being in this state, who shall purchase liquors from a person liable to pay a tax under this act, who has not paid such tax, or shall give an order for liquors to such person liable to pay a tax under this act, which order is to be filled, and such liquors are to be shipped from without this state to a person within this state, furnished or supplied by a person, copartnership, association, or corporation, not resident in or having his, their, or its principal place of business within this state, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than twenty-five nor more than one hundred dollars; and in default of payment thereof shall be imprisoned not less than ten nor more than ninety days, or both such fine and imprisonment, in the discretion of the court.'
Sec. 4. Selling at wholesale shall be deemed to mean and include all sales of such spirituous and intoxicating, malt, brewed, or fermented liquors in quantities of five gallons or over, or one dozen quart bottles or more, or soliciting orders therefor at any one time of any person.
Defendant claims and insists that this Act is in conflict with paragraph three of section 8 and with section 10, art. I, and paragraph one of section 2, art. IY, of the Federal Constitution. Defendant also claims that this statute violates sec. 47 of art. IY of the Constitution of this State, for the reason that it licenses the sale of spirituous liquors, which was prohibited by that section when the statute was enacted, but since that repealed.
The cause was first tried before Judge Holmes, in police court at Grand Rapids. The defendant was convicted, and required to pay a fine of twenty-five dollars and costs of prosecution. On appeal to the circuit court, a trial was there had by a jury before Judge Montgomery, and the respondent was again convicted.
The case now comes before us on error, the record containing a bill of exceptions.
The constitutional questions raised upon the record-were those discussed before us on the hearing, and they only will be considered by this Court. The imposition of the tax upon the business of selling intoxicating liquor is not a license, and is not a violation of the Constitution of our State, as supposed by counsel for defendant. The business contemplated by the statute is selling liquors to residents of this State, which are to be supplied from manufactories out of the State. The statute does not create or authorize the business, but rather assumes its existence, (whether lawful or not, can make no difference,) and, viewing the traffic with disfavor, the Legislature of Michigan, as has the law-making power of every civilized state and nation during the last hundred years, by resort to the police power sought in various ways to prevent and restrain, by its enactments, the evil effects upon the state and society.
The statute under consideration belongs to this class of legislation. Its object was to curtail the traffic, show legislative disapproval, and to a certain extent provide revenue to aid in ameliorating the evils which the trade has never failed to entail upon the community. It was for these purposes the tax upon the business was authorized, and for-the enforcement of its collection the penalty in this case was imposed. Under the decision of this Court the law is not in conflict with our Constitution. Youngblood v. Sexton 32 Mich. 406; Kitson v. Mayor of Ann Arbor 26 Mich. 325.
The Constitution of the United States, in paragraph 3 of sec. viii, Art. I, provides that Congress shall have power to regulate commerce with foreign nations and among the seve- ' ral states, and counsel claim the statute is obnoxious to this provision of the Federal Constitution. I have failed to discover the conflict claimed. The question of foreign commerce is not involved in this case; the constitutional provision relating to commerce between states only is invoked. The statute does not prohibit the introduction and sale of liquors made outside the State. It simply taxes the person who carries on the business here by making sales in this State. It in no way interferes with the introduction of the liquors here. It tolerates and regulates, but seeks not to prohibit. I think in this case no question can be successfully made under tliis clause of the Constitution until the point has been reached where regulation ceases and prohibition begins. A state may pass all such laws as she may deem necessary or desirable for the safety, health or morals of her people, and may use whatever means she may think proper to that end, provided she does not antagonize any law of Congress. Commonwealth v. Kimball 24 Pick. 363; License Cases 5 How. 575.
The use of intoxicating liquor, from the earliest ages, has ever been regarded as a thing not be encouraged. The ancients used wine in its simplest form, but since the discovery of alcohol it has required all the power the government can exert to regulate and control its demoralizing effects. The train of evils which mark the progress of intemperance through the later years is too obvious to require comment. “It brings with it degradation of character, impairs the moral and physical energies, wastes the health, increases the number of orphans, paupers, insane and criminals, undermines the morals, and sinks its victims to the lowest depths of vice and profligacy.” The excessive use of the article has always fallen under universal condemnation, and it's use has long been so closely connected with its abuse as to render legal prohibition or regulation absolutely necessary for the protection of society. Prohibition has been tried in this State. Failing, however, to accomplish the result desired, the people have resorted to the more usual means of regulation and taxation, which clearly come within the proper exercise of the police power of the State. State legislation 'taxing the sale of intoxicating liquors has been held valid and constitutional, under the police power of the State, in every state where the question has been raised, and by the Supreme Court of the United States. Bartemeyer v. Iowa 18 Wall. 129: License Cases 5 How. 504; Gibbons v. Ogden 9 Wheat. 205; Passenger Cases 7 How. 283.
In this case taxation alone is under consideration. The importation and sale in this State are in no manner abridged. The outside manufacturer’s agent is entitled to all the rights and privileges that are secured to the resident of the State. In fact, this statute is more favorable to him than the resident manufacturer. The former, selling or soliciting the sale of intoxicating liquors at wholesale, to be shipped to this State, is required to pay a tax of $300, and $100 for malt, brewed or fermented liquors, (How. Stat. § 1277); the latter, who sells intoxicating liquors at wholesale, must pay a tax of $500, and for malt, brewed or fermented liquors, a tax of $200. How. Stat. § 1281.
It seems difficult to discover any unjust discrimination against citizens of other states under the provisions of this Act. Woodruff v. Parham 8 Wall. 123. The tax is against the person who malees the sale, who carries on the business of selling here, and not the dealer who furnishes and ships the goods. It is not a tax upon commerce within the constitutional provision cited ; nor does it interfere with any law or right of Congress; nor is it an attempt to regulate commerce between this and other states. The right of a state to tax occupations generally is recognized in Brown v. Marryland 12 Wheat. 444; Nathan v. Louisiana 8 How. 80; Peirce v. New Hampshire 5 How. 593; Hinson v. Lott 8 Wall. 148; Machine Co. v. Gage 100 Wall. 676.
The third point made against the Act is that it contravenes paragraph 1 of sec. ii, art. IY, which reads as follows: “ The citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.” In commenting upon this clause of the Constitution, Chief Justice Cooley, in his wort on Taxation [p. 64], says : “ Among these privileges and immunities is that of being exempt in other states from higher taxes or impositions than are paid by the citizens of such other states. Hnder this provision, while it is entirely admissible to levy taxes upon the business or property of non-resident traders within the state, it is not competent to require them to take out a license and to pay therefor a sum greater than that demanded of residents.” In these views I' fully concur; but I am unable to see how they can be made to support the views of counsel for defendant. The right to tax the business or property of the non-resident in this State is fully sustained, and no license is required to be taken. Nothing is required of him that is not required of the resident vendor.
The argument of defendant’s counsel, that the non-resident must pay a tax for every servant or agent he may have making sales for him, is specious. There is nothing to prevent the non-resident manufacturer or dealer from engaging in the business of selling, and paying his tax and employing as many servants or agents as he may choose to assist him. It is the person who pays the tax that is permitted to do the business, and is, of course, on his complying with the law, allowed to carry on the business to any extent he chooses, and of course may"employ or use the necessary help for that purpose. I do not regard the statute obnoxious to this clause of the Constitution. So long as the person paying the tax stands on the same footing as the resident, both as to sales made and quantity sold, there is no discrimination against the non-resident. Guy v. Baltimore 100 U. S. 438; Ward v. Maryland 12 Wall. 418.
The remaining point made by defendant’s counsel is that the statute violates paragraph 2 of sec. x of Art. I of the Constitution, which prohibits the states, without the consent of Congress, laying any tax or duties on imports or exports, except such as may be absolutely necessary for executing its inspection laws. The duties referred to in this section relate solely to the duties upon foreign and imported articles, and do not refer to taxes in the nature of those mentioned in this statute, or to special taxes which grow out of the internal police regulations of the State; the terms “ imports ” and “ exports ” do not refer to goods brought from one state into another, but only to articles imported from or exported to foreign countries. Brown v. Maryland 12 Wheat. 454; Woodruff v. Parham 8 Wall 123; License Cases 5 How. 593.
"We find no error in tbe record and tbe conviction must be affirmed.
The other Justices concurred. | [
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Cooley, C. J.
The charter of the city of Lansing provides that
“No person shall engage in or exercise the business or occupation of tavern-keeper, inn-holder, common victualer, or saloon-keeper, within the limits of said city, until he is first licensed as such by the common council; all hotel or tavern-keepers, inn-holders, or common victualers, who shall keep a bar in connection with their hotel, tavern, inn, or common victualing establishment, and all grocers, druggists, and all other persons who shall sell beverages by the glass or cup in their respective establishments, which are usually sold in a saloon, shall be deemed saloon-keepers within the meaning of this act, and shall be required to take a license as such: Xorovided, that nothing in this act shall be construed as licensing the sale of intoxicating liquors as a beverage.” Charter, tit. 4, § 21; Loc. Acts 1875, p. 172.
April 26, 1881, the common council of the city passed an ordinance, the first section of which provided that
“No.person or persons shall engage in or exercise the business or occupation of tavern or hotel-keeper, either personally or by agent, until he or they shall have obtained a license therefor.”
Another section makes a similar provision for some other occupations. Section five of the ordinance provides that ■
“No license shall be issued under the provisions of this ordinance until the applicant or applicants shall pay to the city treasurer the sum hereinafter specified, and presents the treasurer’s receipt for the same to the mayor. For each hotel, tavern, or inn license, five dollars; for each eating-house or common victualer’s license, two dollars; for each saloon license, one hundred dollars; for each bagatelle, billiard, or other gaming table; five dollars; for each bowling alley, five dollars; for each shooting gallery, gaining board, or machine of any kind whatever, five dollars per day.”
When this ordinance took effect there were seventeen saloon-keepers in the city of Lansing who were engaged in tbe sale of intoxicating drinks, the plaintiff in this suit being one of them. The plaintiff’s business was selling such drinks, together with cigars. The license fee being demanded of him, he paid it under protest, and subsequently brought this suit to recover it back.
On the trial the plaintiff proved that he had paid the State tax of two hundred dollars, and had executed and delivered to the county treasurer the bond required of liquor dealers by the statute, which bond had been approved by the common council of the city. He also proved that the entire police force of the city, not including constables, consisted of four men, each of whom was paid two' dollars a day; that the actual cost of issuing a license under the ordinance would not exceed fifty cents; that aside from said saloons there were seven restaurants, which, under the literal meaning of the term, might be called saloons, where eatables, ice cream, mrts, candies, etc., were sold, and of” none of these was the one hundred dollars demanded. These are all the facts bearing upon the legal questions which have been raised.
The plaintiff contends that the ordinance undertakes by indirection to license the sale of intoxicating drinks, and that for that reason it is void. In Kitson v. Ann Arbor 26 Mich. 325, it was held by this Court that the license of a saloon was not the license of sales of intoxicating drinks, and that consequently such a license might be valid, though the Constitution as it then stood prohibited the granting of any license for the sale of such drinks. This was upon the ground that it is not a necessary part of the business of a saloon-keeper to sell intoxicating drinks, and the license .must be understood to contemplate only that which might lawfully be done. But in Dewar v. People 40 Mich. 401, an ordinance of the city of Ludington, passed while the constitutional provision remained in force, which required saloon and restaurant-keepers to take out a license, but which provided that “ the words saloon and restaurant, as used in this ordinance, shall not be construed to include any place of business kept exclusively and only for the purpose of selling any or all of the following articles, to-wit, cigars, tobacco, confection ery, nuts, candies, ice cream, pop, cakes, fruits, vegetables, or lemonade,” was held void. The reason assigned was that “the exceptions seem carefully designed to exclude from the operation of the ordinance all keepers of saloons and restaurants not engaged in the sale of intoxicating drinks, but to include all those who are or shall be so engaged. The ordinance is therefore manifestly an ordinance to license saloons and restaurants for the sale of intoxicating drinks, because in its terms it applies to them and not to others. It is in this particular radically different from the ordinance of Ann Arbor, which was sustained in Kitson v. Ann Arbor 26 Mich. 325, for that applied to saloons generally.” And see Mount Pleasant v. Vansice 43 Mich. 361.
It is contended for the plaintiff that the case of Pewa/r controls this. We do not think so. In that case the exception was carefully worded with a view to limit the operation of the ordinance to those who sold intoxicating" drinks and who sold nothing else. In this case the ordinance is general, but it discriminates as regards the fees demanded in favor of those whose business is so restricted as to be unaccompanied by the evils which are so likely to attend the keeping of saloons. The saloon-keeper who restricts his business to the sale of food and harmless refreshments must nevertheless take out a license, but if he proposes to take all the customary privileges of a saloon-keeper and sell, as he may think for his interest, anything which is commonly found in saloons, the larger fee is very properly demanded of him. This plaintiff was in no way restricted as to the saloon stock he might deal in, and his own showing is that he did not limit his sales exclusively to liquors.
11 But it is said the license fee is excessive; and evidence is put into the case to show this. The cost of issuing the license seems to be insignificant, and the cost of the police force appears so small that it may be argued with much force that the sum demanded of saloon-keepers is beyond what the cost of regulation and of public protection as against the evils caused by their business can possibly be. But the local legislature is a better judge of this than the courts can be, and the discretion to fix the amount is confided to the common council, and not to the judiciary. Ash v. People 11 Mich. 347. And if we had the right to review their action, we could not say that the direct and indirect cost to the city, occasioned by the existence within it of the business which the plaintiff and others carried on, was not probably equal to the sum total of the license fees demanded of them.
The point is made that as the State taxes the sale of intoxicants for the purposes of regulation and restraint, the municipalities cannot be empowered to impose further burdens for the like purpose. "We do not agree in this. It is customary and very proper for the State to give to its municipal bodies large powers of regulation in respect to subjects which aro, to some extent, regulated by State laws also. The circumstances of different localities require different regulations ; and the general law of the State may need to be supplemented by local regulations. The power of the State to permit this is ample.
The judgment of the circuit court, which was in favor of the plaintiff, must be reversed with costs of both courts.
The other Justices concurred. | [
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Campbell, J.
This is the same case which was once before us, as reported in 50 Mich. 100. The declaration contained five counts, the second of which is now stricken out, all of which, in one way or another, count upon unlawful interference with plaintiff’s possessory rights by defendant as his landlord. The declaration is drawn in a. very general way, and it was claimed on the trial that there was a misjoinder of counts and a mingling of causes of action not properly counted on together. Other more serious questions are also presented. To understand the questions it is important to know just what the relations were.
Plaintiff had a lease of the basement under two stores of defendant, in Detroit, for a saloon and restaurant,-from April, 1880, to April 30, 1881. In the fall of 1880, defendant desired to put up an elevator for hotel purposes, partly or wholly, and on the 26th of November, 1880, he got a written permission from plaintiff and other tenants, “ at all reasonable times to enter upon, possess and occupy, with material, workmen, etc., so much of the premises as should be reasonably necessary for the proper and convenient construction of said elevator.”
The 1st count appears to rely upon the taking of too much of plaintiff’s space, and the interruption of his business for two months longer than was necessary. The 3d count relies ■on what wore claimed to be intentional annoyances, within and without the period of the lease as shown. The 4th count •seems to be a mere repetition of the 1st, with no substantial, and not much verbal, difference. The 5th count is a charge, under pretext of a license, of entry upon premises not covered by the license. If valid for any purpose, this is a count in trespass, and sets up no consequential damages. The ■court properly held no recovery could be had under this count. But we think the objection of misjoinder of counts should have been considered when made at the outset of the trial, and plaintiff should have been put to his election, and not allowed to go over the whole range of testimony without ■doing so.
We do not think that either count can be fairly called a ■count in assumpsit, although the 1st and 4th counts could only be proved by showing a breach of contract. Such ■counts as are valid might properly be treated as sounding in case. But the 3d count, whether valid or not on its face, requires some consideration upon the case as sought to be ■shown.
A single count must cover but a single cause of action. When this case was formerly presented it was intimated that possibly, as not demurred to, this count might stand as including no more than several parts of a single attempt to •drive plaintiff from the premises and spoil his business. But in the light of the testimony as now presented, and of the •objections as now urged, this cannot be maintained.
It rests the whole ground for complaint on a continuous right of possession as lessee at the time of the grievances, and down to the bringing of suit, and after setting out defendant’s purpose of getting him out and incommoding him in his occupancy, contains a series of positive grievances and •annoyances, which were, in substance, (1) removing the heating-pipes and delaying their restoration; (2) stopping up the ■stove chimney and filling the premises with smoke; (3) filling the rooms and furniture with dust and plaster, and so preventing business; (4) standing outside the premises and keeping people away by threats and taking down their names; '(5) turning off steam in cold weather; (6) malicious prosecutions under the liquor law. The fourth and sixth grievances were alleged in June, 1881, which was some time after the lease expired.
All of this was inconsistent with any such right of possession as was shown by the lease, and could only be consistent with a continuous lease up to the time of suit. The description of the leasehold right in this count was material as alleged, because it was the right which defendant was charged with having endeavored to damage or destroy. There was no testimony from which the jury could have found any such uniform and continuous leasehold.
This defect is fatal to what was evidently the most serious part of the case as presented to the jury, and renders it unnecessary now to consider the question of malice and vindictive damages, as well as several questions presented in •connection with the testimony of ITartzell, and some other peculiar evidence. Everything that depended on this count was wrongly in the case.
The 1st and 4th counts are the only ones on which any action was proper. Those are demurrable for want of any .accurate showing of the extent of plaintiff’s rights and how they have been impaired. Not having been demurred to, we think they are not fatally defective. But they must, nevertheless, be dealt with so as to confine their effect to what it would have been in case they had been properly framed.-
The grievance charged in these counts is neither more nor less than a violation of contract rights, by interfering with quiet enjoyment under a lease. The counts show this on their face by referring to the lease as given by defendant to plaintiff for a saloon and restaurant, and to the license as authorizing only a qualified interference which had been exceeded both in time and manner, to plaintiff’s prejudice. If tliis had been a suit on contract, not only would it have been necessary to set out the terms of the lease, but the declaration should have contained averments of the time and manner in which the interference had been made, and of the period ■covered by it, and in what respects it should have been shorter or different. There is no good reason why any less care should be required in a declaration upon the case. It is necessary in such a controversy to know what right exists, and just howi.t has been injuriously affected.
In looking at the record we think all of the defendant’s requests to charge, except the ninth, (which was that there could be no recovery,) were proper, as applicable to the only counts which could be considered, and should have been given directly or in the. general charge. Probably, if the 3d count and the testimony received under it had been thrown out, the court below might have- so charged. But the whole subject was, in the view taken below, naturally enough blended. The only substantial grievances alleged in the 1st and 4th counts seem to include the use of more space than was reasonable — upon which there does not appear to be any direct showing — and the unreasonable délay, upon which there was testimony for the jury, but so mixed up with the other facts that we cannot very well consider thé rulings fully, because we cannot be sure how the court below would have modified them had the ease been confined to the disturbance of business for these causes alone.
Judging from the record, there is some reason to think that counsel took too much latitude in asserting facts and leading witnesses. And there is also some reason to think that in the final instruction concerning damages the jury were allowed to assume too much from the mere change of business profits without reference to the natural consequences of any such interruption, — lawful or unlawful, — at that time of the year, and with the unavoidable confusion of such repairs and changes. In a previous part of the charge they had been properly cautioned, but other elements had been discussed, and the question of malice had come in, so that there was some danger of error.
We also think that the damages should have been confined to those belonging to Ives alone. If he had sued on the contract of lease, it may be that, as the only one-who was a party lessee, he might represent the entire cause of action. But in an action on the case, any one who. had rights of possession derived from the lease could have sued for their disturbance, and recovered damages. It was. shown here by some testimony that Ives was not the sole party interested in the business which was damaged ; and while a failure to plead in abatement may have prevented the entire defeat of the action, it does not enlarge his private cause of damage. Whether this is one of those cases where such a plea could be filed, we need not now consider. Neither can we anticipate what proportion plaintiff’s interest may turn out to be. But he can recover no more damage than he has suffered.
There must be a reversal and new trial.
The other Justices concurred.
The requests were as follows:
First. The defendant had the right, under the agreement, to take all the plaintiff’s premises reasonable and necessary for the proper and convenient construction of the elevator; and if he only took enough space for the purpose, he is not liable for any damages that plaintiff may suffer on that account.
Second. The plaintiff charges that more room was taken than was reasonably necessary; he must prove this, and you are not at liberty to go outside the proof and assume that any less room would have done.
Third. It makes no difference whether the defendant could, by using some other portion of the building, have avoided the use of plaintiff’s premises, in bringing in machinery for the elevator; he was not obliged to use any other premises as long as he took and used only such of plaintiff’s as were necessary for the purpose. The plaintiff had consented to the use of his premises and cannot now claim that the defendant had other premises he could have used as well.
Fourth. Unless you find that the defendant, in bringing in the machinery, took more time or used more of plaintiff’s room than was necessary to get the machinery from the street to the elevator, then he is not liable on that account.
Fifth. If you find more time was taken than was necessary to get the machinery in, but that was on account of the plaintiff’s having stopped the men and prevented them getting the machinery through, then the defendant is not liable for such time as was lost by plaintiff’s interference.
Sixth. If you find that the plaintiff was damaged by the work, you can only give him such sum as his -total loss was, or what under the circumstances of the case and the reasonable use of the premises it naturally would be.
Seventh. If plaintiff had a partner, then during the time he had a partner, you must divide the damages, as the partner would be entitled to claim his share of the damages.
Eighth. You can only give damages for two months under the declaration.
Ninth. The defendant is entitled to your verdict under the testimony. | [
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Cavanagh, P.J.
In these consolidated appeals, the Department of Treasury (respondent) appeals as of right judgments of the Michigan Tax Tribunal (Tax Tribunal) awarding refunds of the transfer tax that each petitioner paid pursuant to the State Real Estate Transfer Tax Act (SRETTA) when they sold their homes, on the ground that the conveyances were exempt under MCL 207.526(u). We reverse.
The facts are not disputed. All of the petitioners were entitled to the principal residence exemption under MCL 211.7cc. And at the time each petitioner sold their home, the state equalized value (SEV) was less than the SEV at the time of their purchase. In particular, petitioners James and Susan Gardner purchased their home in 2008 when the SEV was $464,300, but sold it for $875,000 when the SEV was $374,800. Fetitioners Liem and Alecia Ngo purchased their home in 2007 when the SEV was $321,180, but sold it for $464,000 when the SEV was $219,860. Petitioners John and Jennifer Maselli purchased their home in 2004 when the SEV was $303,370, but sold it for $470,000 when the SEV was $198,530.
Upon the sale of their homes, each petitioner paid the transfer tax under SRETTA, MCL 207.523, and then requested a refund from respondent under MCL 207.526(u), which provides that certain written instruments and transfers of property are exempt from the transfer tax, including:
A written instrument conveying an interest in property for which an exemption is claimed under section 7cc of the general property tax act, 1893 PA 206, MCL 211.7cc, if the state equalized valuation of that property is equal to or lesser than the state equalized valuation on the date of purchase or on the date of acquisition by the seller or transferor for that same interest in property. If after an exemption is claimed under this subsection, the sale or transfer of property is found by the treasurer to be at a value other than the true cash value, then a penalty equal to 20% of the tax shall be assessed in addition to the tax due under this act to the seller or transferor. [MCL 207.526(u).]
Respondent denied each petitioner’s request for a refund of the transfer tax, concluding that they were not entitled to the exemption because each property sold for more than its “true cash value.” Respondent interpreted the penalty clause phrase “true cash value” as meaning two times the SEY consistent with the annual property tax assessment process. Thereafter, each petitioner appealed in the Tax Tribunal.
In each appeal, the Tax Tribunal held that the first sentence of MCL 207.526(u) is unambiguous and sets forth two elements that must be met to qualify for the transfer tax exemption: (1) a principal residence exemption was claimed regarding the subject property under MCL 211.7cc, and (2) at the time the subject property was conveyed, the SEV was less than or equal to the SEV on the date the property was acquired. However, the Tax Tribunal opined, when the first sentence of the statute is read in conjunction with the second sentence — the penalty clause — -the statute becomes ambiguous because the penalty clause would only allow an exemption when the value or sale price of the property is the same as its true cash value, which constituted an absurdity that was unintended by the Legislature. In reaching this conclusion, the Tax Tribunal rejected respondent’s argument that true cash value means two times the SEYj noting that MCL 211.27(1) defines “true cash value” as “the usual selling price” and “the price that could be obtained for the property at private sale .. . .” Further, the Tax Tribunal held that respondent failed to carry its burden of proving that the penalty provision applied and, therefore, each petitioner was entitled to a refund of the transfer tax. Respondent appealed in each case, and the appeals were consolidated. Gardner v Dep’t of Treasury, unpublished order of the Court of Appeals, entered December 10, 2013 (Docket Nos. 315531, 315684, and 317171).
Respondent argues that the Tax Tribunal erred when it determined that each conveyance was exempt from transfer tax because, according to respondent, petitioners sold their properties for more than the true cash value of each property. We agree.
When the facts are not in dispute and there is no claim of fraud, decisions of the Tax Tribunal are reviewed to determine whether the tribunal made an error of law or adopted a wrong legal principle. Mich Props, LLC v Meridian Twp, 491 Mich 518, 527-528; 817 NW2d 548 (2012). We review de novo issues of statutory interpretation. McAuley v Gen Motors Corp, 457 Mich 513, 518; 578 NW2d 282 (1998).
Generally, SRETTA imposes a tax upon written instruments when the instrument is recorded. MCL 207.523(1). However, MCL 207.526 sets forth several exemptions and provides, in relevant part:
The following written instruments and transfers of property are exempt from the tax imposed by this act:
(u) A written instrument conveying an interest in property for which an exemption is claimed under section 7cc of the general property tax act, 1893 PA 206, MCL 211.7cc, if the state equalized valuation of that property is equal to or lesser than the state equalized valuation on the date of purchase or on the date of acquisition by the seller or transferor for that same interest in property. If after an exemption is claimed under this subsection, the sale or transfer of property is found by the treasurer to be at a value other than the true cash value, then a penalty equal to 20% of the tax shall be assessed in addition to the tax due under this act to the seller or transferor.
The foremost rule of statutory interpretation “is to discern and give effect to the intent of the Legislature.” Whitman v City of Burton, 493 Mich 303, 311; 831 NW2d 223 (2013). Each word or phrase of a statute is given its commonly accepted meaning, unless a word or phrase is expressly defined, and then courts must apply it in accordance with that definition. McAuley, 457 Mich at 518. Unambiguous language is given the intent clearly expressed and the statute is enforced as written. Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). Judicial construction of unambiguous language is not permitted. Id. Interpretation strives to give effect to every phrase, clause, and word in a statute. Id. at 237. “To discern the true intent of the Legislature, the statutes must be read together, and no one section should be taken in isolation.” Apsey v Mem Hosp, 477 Mich 120, 132 n 8; 730 NW2d 695 (2007).
The parties agree with the Tax Tribunal that the first sentence of MCL 207.526(u) imposes two requirements for the exemption to apply: (1) a principal residence exemption was claimed regarding the subject property under MCL 211.7cc, and (2) at the time the subject property was conveyed, the SEV was less than or equal to the SEV on the date the property was acquired. The dispute regards the statute’s second sentence, the penalty clause.
Respondent argues that the Tax Tribunal failed to accord the proper and distinct meanings to the word “value” and the phrase “true cash value” used in the penalty clause. The word “value” is defined in SRETTA as “the current or fair market worth in terms of legal monetary exchange at the time of the transfer.” MCL 207.522(g). However, respondent argues, “[T]rue cash value as used in MCL 207.526(u) means the true cash value assigned by the assessor in that year. And, because property is assessed at 50% of the true cash value, subject to county equalization, true cash value will always be two times the state equalized value.” Respondent further argues that the statute’s use of the phrase “other than” means “greater than” with respect to the true cash value because that construction allows for a transfer tax exemption in a declining market.
To the contrary, petitioners argue, the General Property Tax Act (GPTA) defines “true cash value” as the usual selling price or price that could be expected at a private sale of the property. MCL 211.27(1). And “true cash value,” according to petitioners, is synonymous with “fair market value.” See CAF Investment Co v State Tax Comm, 392 Mich 442, 450; 221 NW2d 588 (1974). Further, SRETTA and the GPTA must be read in pari materia because they both relate to the same subject, taxation, and SRETTA specifically refers to the GPTA and its terms. Accordingly, petitioners argue, to establish that the penalty clause was applicable here, respondent was required to prove that petitioners’ properties were sold for a value other than fair market value, i.e., the price that a willing buyer and a willing seller would arrive at through arm’s-length negotiation. Because respondent failed to provide any such evidence, the Tax Tribunal properly found that the penalty clause did not apply and petitioners were entitled to a refund of the transfer tax they paid.
There is some merit to both parties’ arguments on appeal. We agree with respondent that the Tax Tribunal erred as a matter of law by concluding that MCL 207.526(u) is ambiguous when its two sentences are considered together. Although the Tax Tribunal’s interpretation of a state statute is entitled to respectful consideration, the tribunal’s interpretation is not controlling and cannot overcome a statute’s plain meaning. See In re Rovas Complaint, 482 Mich 90, 117-118; 754 NW2d 259 (2008). The statute at issue here is not ambiguous; the word “value” and the phrase “true cash value” have clear meanings.
SRETTA defines the word “value”; thus, that definition controls. See McAuley, 457 Mich at 518. Specifically, MCL 207.522(g) defines “value” as “the current or fair market worth in terms of legal monetary exchange at the time of the transfer. The tax shall be based on the value of the real property transferred. . . .” See also MCL 207.525. A well-established rule of statutory construction is that statutory language must be read within its particular context. G C Timmis & Co v Guardian Alarm Co, 468 Mich 416, 421; 662 NW2d 710 (2003). The statutory provision at issue here requires a comparison of “value” to “true cash value” for purposes of property taxation. Thus, “value” refers to the worth, in monetary terms, of what was exchanged for the real property in which the exemption was claimed. This definition is consistent with the definition provided by Black’s Law Dictionary (7th ed), which defines “value” as “[t]he monetary worth or price of something; the amount of goods, services, or money that something will command in an exchange.” And, similarly, as this Court noted in Wolfe-Haddad Estate v Oakland Co, 272 Mich App 323, 326; 725 NW2d 80 (2006), the definition of “value” in Random House Webster’s College Dictionary (1997) is: “ ‘monetary or material worth, as in commerce,” and “the worth of something in terms of some medium of exchange ....’” Accordingly, in these cases, when considering whether petitioners were entitled to a refund of the transfer taxes they paid, the Treasurer was required to consider how much petitioners were paid for their properties.
The statute then requires the Treasurer to compare that “value” to the “true cash value” of the subject property. Although SRETTA does not define “true cash value,” the GPTA specifically defines “true cash value” for purposes of taxation as “the usual selling price at the place where the property to which the term is applied is at the time of assessment, being the price that could be obtained for the property at private sale, and not at auction sale... or at forced sale.” MCL 211.27(1). In accordance with well-established principles of statutory construction, statutory provisions of SRETTA and the GPTA are in pari materia because they relate to the same subject and share a common purpose — taxation. See State Treasurer v Schuster, 456 Mich 408, 417; 572 NW2d 628 (1998), quoting Detroit v Mich Bell Tel Co, 374 Mich 543, 558; 132 NW2d 660 (1965), overruled on other grounds by City of Taylor v Detroit Edison Co, 475 Mich 109, 119 (2006). Thus, we consider the definition of “true cash value” set forth in GPTA applicable for purposes of SRETTA.
Essentially, then, MCL 207.526(u) requires consideration of how much claimants of the transfer tax exemption were paid for their properties compared to how much their properties were worth for taxation purposes. In Michigan, the true cash value, or worth, of a property is used to assess property taxes. That is, property must be assessed at 50% of its “true cash value.” MCL 211.27a(1), citing Const 1963, art 9, § 3. The manner in which the assessment occurs is prescribed by law. See, for example, MCL 211.27. Generally, after the local tax assessor assesses each property at 50% of its true cash value, the assessment rolls are then subjected to an equalization process at both the county level, MCL 211.34(2), and state level, MCL 209.4(1), to ensure that taxing units “have equally and uniformly assessed property at fifty percent of its true cash value.” Fairplains Twp v Montcalm Co Bd of Comm’rs, 214 Mich App 365, 369; 542 NW2d 897 (1995), citing Emmet Co v State Tax Comm, 397 Mich 550, 560; 244 NW2d 909 (1976) (Williams, J., dissenting). See also WPW Acquisition Co v City of Troy, 250 Mich App 287, 300-301; 646 NW2d 487 (2002). Thus, as respondent argued, the SEV represents 50% of the true cash value of a property for taxation purposes.
And, pursuant to MCL 211.31, upon completion and endorsement of the assessment roll, “the same shall be conclusively presumed by all courts and tribunals to be valid, and shall not be set aside except for causes hereinafter mentioned.” See also MCL 205.735(2) (“For an assessment dispute as to the valuation of property or if an exemption is claimed, the assessment must be protested before the board of review before the tribunal acquires jurisdiction of the dispute ....”). In this case, none of the petitioners protested their assessments or filed an assessment appeal; therefore, petitioners’ assessments are conclusively presumed to be valid with regard to their properties. See Alhi Dev Co v Orion Twp, 110 Mich App 764, 767-768; 314 NW2d 479 (1981) (“[T]he conclusive presumption of validity as to an individual assessment arises only after an appeal is decided or the time for appeal has expired with respect to such parcel.”). Accordingly, to determine whether each petitioner was entitled to the transfer tax exemption, the Treasurer had to compare how much was paid for each property to the value of the SEV multiplied by two, the property’s undisputed true cash value.
However, when considering whether a claim for exemption has merit, the Treasurer must also determine whether the sale or transfer of property was “at a value other than the true cash value____” MCL 207.526(u) (emphasis added). Respondent argues that the phrase “other than” should be construed to mean “greater than,” consistent with an opinion by the Attorney General, which concluded that an exemption may be claimed provided that the property is sold for “not more than” its true cash value. OAG, 2007-2008, No. 7214, p 125 (April 3, 2008). That is, according to the Attorney General, this penalty clause applies only if the sale price was in excess of the true cash value of the property. Id. at p 128. However, opinions of the Attorney General are not binding on Michigan courts. Frey v Dep’t of Mgt & Budget, 429 Mich 315, 338; 414 NW2d 873 (1987). And we disagree with the constructions of the phrase “other than” offered by respondent and the Attorney General.
Simply stated, “other than” does not mean “greater than”; rather, it plainly means “different.” See MCL 8.3a. Thus, if the property was conveyed for a value different than its true cash value, the conveyance is not exempt from the transfer tax and the penalty clause applies. Tax exemption statutes “are to be strictly construed in favor of the taxing unit.” Ladies Literary Club v Grand Rapids, 409 Mich 748, 753; 298 NW2d 422 (1980) (citation and quotation marks omitted). Accordingly, if the subject property was conveyed for a value less than or greater than its true cash value, the conveyance is not exempt from the transfer tax and the penalty clause applies if a claim for exemption or a claim for a refund of the transfer tax is made. By way of explanation, we offer the following examples: (A) if the true cash value of the subject property is $100,000 and it was sold for $50,000, the conveyance is not exempt from the transfer tax; (B) if the true cash value of the subject property is $100,000 and it was sold for $150,000, the conveyance is not exempt from the transfer tax. In the first hypothetical, the seller sold the property for less than its fair market value; a reasonably prudent seller would not typically sell below fair market value and may have structured the sale to avoid paying the transfer tax or may not have consummated the sale through an arm’s-length transaction. In any case, the conveyance is not exempt from the transfer tax. The second hypothetical is clear; the seller sold the property for more than its true cash value and the conveyance is not exempt from the transfer tax.
This strict construction in favor of the taxing unit may seem harsh but, as noted by our Supreme Court, tax exemptions represent the “antithesis of tax equality” because they result in “the unequal removal of the burden generally placed on all landowners to share in the support of local government.” Mich Baptist Homes & Dev Co v Ann Arbor, 396 Mich 660, 669-670; 242 NW2d 749 (1976). This interpretation is also consistent with the principles set forth by our Supreme Court in Detroit v Detroit Commercial College, 322 Mich 142, 148-149; 33 NW2d 737 (1948), regarding the construction of tax exemptions:
“[I]t is a well-settled principle that, when a specific privilege or exemption is claimed under a statute, charter or act of incorporation, it is to be construed strictly against the property owner and in favor of the public. This principle applies with peculiar force to a claim of exemption from taxation. Exemptions are never presumed, the burden is on a claimant to establish clearly his right to exemption, and an alleged grant of exemption will be strictly construed and cannot be made out by inference or implication but must be beyond reasonable doubt.... Moreover, if an exemption is found to exist, it must not be enlarged by construction, since the reasonable presumption is that the State has granted in express terms all it intended to grant at all, and that unless the privilege is limited to the very terms of the statute the favor would be extended beyond what was meant.” [Quoting 2 Cooley, Taxation (4th ed), § 672, p 1403.]
In this case, if petitioners sold their properties for more than or less than the true cash value of their properties, i.e., the value of the SEV doubled, the transfer tax was properly paid and they were not entitled to a refund. Again, the burden of proving entitlement to an exemption is on the party claiming the right to the exemption, Elias Bros Restaurants, Inc v Treasury Dep’t, 452 Mich 144, 150; 549 NW2d 837 (1996), and that party must prove entitlement by a preponderance of the evidence, ProMed Healthcare v Kalamazoo, 249 Mich App 490, 494-495; 644 NW2d 47 (2002). Petitioners Gardner sold their property for $875,000, although its true cash value was $749,600 (the SEV of $374,800 multiplied by two). Therefore, petitioners Gardner were not entitled to a refund of the transfer tax they paid and the Tax Tribunal’s decision is reversed. Petitioners Ngo sold their property for $464,000, although its true cash value was $439,720 (the SEV of $219,860 multiplied by two). Therefore, petitioners Ngo were not entitled to a refund of the transfer tax they paid and the Tax Tribunal’s decision is reversed. Petitioners Maselli sold their property for $470,000, although its true cash value was $397,060 (the SEV of $198,530 multiplied by two). Therefore, petitioners Maselli were not entitled to a refund of the transfer tax they paid and the Tax Tribunal’s decision is reversed. Accordingly, we reverse the decisions of the Tax Tribunal in each case. Petitioners were not entitled to a refund of the transfer tax paid with regard to each conveyance.
Reversed.
Stephens, J., concurred with Cavanagh, P.J.
MCL 205.737(2) also directs the Tax Tribunal that, when determining SEV in an assessment dispute: “The property’s state equalized valuation shall not exceed 50% of the true cash value of the property on the assessment date.”
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Wilder, P.J.
Defendant appeals as of right his convictions following a jury trial of three consolidated cases. We consolidated the appeals. In Saginaw Circuit Court Docket No. 10-035017-FH, defendant was convicted of accosting, enticing, or soliciting a child (CP) for immoral purposes, MCL 750.145a, and sentenced to 13 months to 4 years in prison. In Docket No. 10-035018-FH, defendant was convicted of third- degree criminal sexual conduct (CSC-III) involving AW, MCL 750.520d(1)(a) (sexual intercourse with a victim 13 to 15 years old), and sentenced to 4 to 15 years in prison. In Docket No. 10-035019-FH, defendant was convicted of three counts of CSC-III involving MM (digital penetration with a victim 13 to 15 years old) and accosting a child (MM) for immoral purposes, and was sentenced to 4 to 15 years in prison for the CSC-III convictions and 13 months to 4 years in prison for the accosting conviction. We affirm defendant’s convictions, vacate the portion of the judgment of sentence ordering restitution, and remand to the trial court for entry of an amended judgment of sentence.
i
The cases against defendant arose out of his interactions with AW, CP, and MM in his senior year of high school (2008-2009) and the year following his graduation, when he was 18 or 19 years old. In defendant’s senior year, he met AW AW testified that she really got to know defendant during the 2009 track season, when she was 15 years old. They both attended a bonfire, which defendant testified was in May 2009. According to AW they left the bonfire, went to defendant’s parents’ house, and had “consensual” sexual intercourse in defendant’s basement bedroom. Defendant claimed they only “made out.”
MM met defendant in October 2009 after defendant had graduated. MM was 13 or 14 years old. MM testified that she and defendant exchanged text messages and that, at first, their text messages were not personal. MM testified that in November or December 2009, defendant asked for photographs of MM and that, later, defendant asked for photographs with her clothes off. MM explained that she first sent photographs of her buttocks and stomach, but when defendant asked for photographs of her breasts and vagina, she sent them.
The record demonstrated that MM also visited defendant’s parents’ house on several occasions. MM testified that, in May 2010, defendant “fingered” MM in his basement by putting his finger in her vagina for three to five minutes. About a week later, MM asked defendant to hang out. He picked up MM and her friend, Sarah Cramer. MM testified that defendant digitally penetrated her when Cramer went to the bedroom to talk on the phone. Although Cramer came out of the bedroom while defendant was digitally penetrating her, MM testified that she did not think Cramer knew what was happening because defendant’s back was to Cramer and the lights and television were off. MM testified that she told Cramer what defendant did to her after they got home. Although Cramer told the police that MM had said “nothing happened,” Cramer testified at trial that she was afraid of getting in trouble and that MM had actually said that defendant “fingered” her. MM testified that, around June 10, 2010, she visited defendant’s parents’ house again and he digitally penetrated her on his bed. Defendant offered contrary testimony from his friend, who testified that he was present during this visit and never left MM and defendant alone.
Although he never tried to have sexual intercourse with MM, defendant texted MM, “I wanna f*** you if you weren’t so young.” According to MM, defendant also told her not to tell others about their relationship because he knew their age difference was “illegal.”
Defendant met and started texting CP in the spring of 2010 when she was 14 years old and on the track team. Defendant had graduated, but was practicing at the high school track to prepare for college track tryouts. At the same time, he helped some students, including Cl] on the track team. CP testified that defendant asked for naked photographs, which she sent from about May 2010 to July 2010. CP testified that, if she refused to send photographs, defendant would threaten not to talk to her or help her with track. CP also testified that defendant told her not to tell anyone what was happening.
In the summer of 2010, MM’s father discovered her communications with defendant and contacted the police. In August 2010, Detective Jason Wise interviewed defendant. Detective Wise testified that defendant initially denied that MM had sent him naked photographs, but after the detective showed him the photographs on a computer, defendant admitted that she had sent him photographs of her buttocks, lower body, and breasts. Detective Wise testified that defendant also admitted that he used his finger to penetrate MM’s vagina on at least two occasions.
Throughout trial, defendant testified that he did not have sexual intercourse with any of the victims. Contrary to Detective Wise’s testimony, defendant specifically denied penetrating MM with his finger. Defendant testified that he only told MM to send him photographs that she had already sent to at least two other boys. Similarly, defendant testified that CP had originally suggested sending him pictures and that he had merely persisted in asking for them afterward.
II
Defendant first challenges the sufficiency of the evidence to support his conviction of CSC-III with regard to AW Defendant further claims this conviction was against the great weight of the evidence and the trial court abused its discretion when it denied his motion for a new trial. We disagree.
A challenge to the sufficiency of the evidence in a jury trial is reviewed de novo, viewing the evidence in the light most favorable to the prosecution, to determine whether the trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt. People v Harverson, 291 Mich App 171, 175; 804 NW2d 757 (2010). The trial court’s decision regarding defendant’s motion for a new trial is reviewed for an abuse of discretion. People v Lemmon, 456 Mich 625, 642, 644; 576 NW2d 129 (1998).
In challenging his conviction of CSC-III with regard to AW, defendant only alleges that the prosecutor failed to prove that AW was under 16 years of age for purposes of MCL 750.520d(1)(a) when she and defendant had sexual intercourse. The prosecutor established that AW met defendant when she was a freshman and he was a senior. AW further testified that she encountered defendant at a bonfire, which they left to go to defendant’s parents’ house, where they had sexual intercourse in his basement bedroom. We agree with defendant that AW did not testify when the bonfire occurred. But defendant testified that the bonfire occurred in May 2009. Given evidence in the record that AW was born in December 1993, a reasonable trier of fact could con- elude that AW was 15 years old at the time of the May 2009 bonfire, when she had sexual intercourse with defendant.
The trial court denied defendant’s motion for a new trial, holding that the great weight of the evidence supported a finding that AW was 15 years old at the time of the offense. None of the exceptional circumstances that would warrant a conclusion that the finding was against the great wright of the evidence, as expressed in Lemmon, 456 Mich at 643-644, are present in this case. Thus, nothing warrants a conclusion that this verdict is contrary to the great weight of the evidence. The evidence does not preponderate so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand. People v McCray, 245 Mich App 631, 637; 630 NW2d 633 (2001). The trial court did not abuse its discretion by denying the motion for a new trial.
hi
Defendant next claims he was denied his constitutional rights to due process and notice of the accosting charges and two of the charges of CSC-III with regard to MM because there was no evidence that those offenses occurred on or about May 1, 2010, as set forth in the charging documents. We disagree. Defendant’s unpreserved constitutional claims are reviewed for plain error affecting substantial rights. People v Carines, 460 Mich 750, 763, 774; 597 NW2d 130 (1999).
“The Due Process Clause of the Fourteenth Amendment mandates that a state’s method for charging a crime give a defendant fair notice of the charge against the defendant, to permit the defendant to adequately prepare a defense.” People v Chapo, 283 Mich App 360, 364; 770 NW2d 68 (2009); see Chambers v Mississippi, 410 US 284; 93 S Ct 1038; 35 L Ed 2d 297 (1973). “Prejudice is essential to any claim of inadequate notice.” Chapo, 283 Mich App at 364.
MCL 767.45(1)(b) provides that the indictment or information shall include: “The time of the offense as near as may be. No variance as to time shall be fatal unless time is of the essence of the offense.” MCL 767.51 provides:
Except insofar as time is an element of the offense charged, any allegation of the time of the commission of the offense, whether stated absolutely or under a videlicet, shall be sufficient to sustain proof of the charge at any time before or after the date or dates alleged, prior to the finding of the indictment or the filing of the complaint and within the period of limitations provided by law: Provided, That the court may on motion require the prosecution to state the time or identify the occasion as nearly as the circumstances will permit, to enable the accused to meet the charge.[ ]
In Turner v People, 33 Mich 363, 378 (1876), the facts did not allow the prosecutor to “state positively and certainly the exact day” of the offense. But our Michigan Supreme Court ruled:
This, however, was not important so long as the facts and incidents precluded all doubts respecting the identity of the transaction to be prosecuted, and so long as it was manifest that the act was recent enough to be subject to prosecution, and that a preliminary examination in regard to it had been had. Time is not an ingredient of the offense in any such sense as to make it necessary to charge it according to the truth. The information or indictment may state one time and the proof show a different one without involving an objectionable variance. [Id.]
“[I]n People v Howell, 396 Mich 16, 27 n 13; 238 NW2d 148 (1976), the Supreme Court suggested that an im precise time allegation would be acceptable for sexual offenses involving children, given their difficulty in recalling precise dates.” People v Naugle, 152 Mich App 227, 234 n 1; 393 NW2d 592 (1986) (the child victim in Naugle was molested from age 8 to 13, a detective testified that children have difficulty remembering the exact dates of individual assaults, and this Court held “it is conceivable that specific dates would not stick out in her mind”) id. at 235.
The prosecutor alleged in the charging documents that the three acts of CSC-III involving MM occurred on or about May 1, 2010, but defendant argues that the second and third acts must have occurred subsequently. Like the abuse that occurred in Naugle, the criminal sexual conduct involving MM was repeated and MM had difficulty remembering the exact dates. Naugle, 152 Mich App at 234 n 1. The prosecutor made a good-faith effort to establish the dates with MM’s text messages, which reflected when she visited defendant at his parents’ house, where the offenses occurred. Furthermore, defendant was not prejudiced in preparing a defense because, at the preliminary examination, MM testified regarding the time frame during which the criminal sexual conduct occurred and, at trial, defendant offered specific testimony from several witnesses about this time frame. Because defendant presented a defense and has demonstrated no prejudice from the imprecise allegations regarding the time of the second and third acts of CSC-III involving MM, any error in the charging documents did not affect defendant’s substantial rights.
The bases for the allegations of accosting that occurred on or about May 1, 2010, were text messages from defendant to MM and CP requesting naked photographs. CP testified at the preliminary examination that she sent the photographs defendant requested during the 2010 track season. MM testified that, in November or December 2009, defendant started asking for naked photographs. Defendant was aware of the allegations by MM as early as his August 2010 interview with the police and, during discovery, he received copies of all the text messages. Defendant admitted that he “studied” the text messages “several times.” He testified at trial that “there’s a lot of missing texts” and that MM and CP actually offered to send him photographs before he asked for them. Because defendant had pretrial notice of the text messages and presented a defense to the accosting charges accordingly, he cannot demonstrate plain error affecting his substantial rights from the imprecision regarding the time during which the accosting was alleged to have occurred.
Defense counsel was not ineffective for failing to object to the charging documents. Effective assistance of counsel is presumed, and defendant bears a heavy burden of proving otherwise. People v LeBlanc, 465 Mich 575, 578; 640 NW2d 246 (2002). To demonstrate ineffective assistance, defendant must show: (1) that his attorney’s performance fell below an objective standard of reasonableness, and (2) that this performance so prejudiced him that he was deprived of a fair trial. People v Grant, 470 Mich 477, 485-486; 684 NW2d 686 (2004). “To demonstrate prejudice, the defendant must show the existence of a reasonable probability that, but for counsel’s error, the result of the proceeding would have been different.” People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001).
The result would not have been different if defense counsel had objected to the charging documents. Id. Defense counsel had advance notice of the applicable dates of the charged offenses following the preliminary examination and was prepared with a defense, including witness testimony regarding those specific dates. Defendant does not argue that his defense would have been any different if the charging documents had been more specific. Therefore, defendant cannot establish prejudice from defense counsel’s failure to object. Grant, 470 Mich 485-486.
iv
Defendant also claims that the trial court abused its discretion by admitting evidence of other charged and uncharged acts under MCL 768.27a. We disagree.
The prosecutor offered evidence of the following other acts at trial:
• Charged offenses: The evidence supporting the charges in each victim’s case was offered under MCL 768.27a in the other victims’ cases.
• Uncharged offenses: Testimony that AW stated, in a previous interview, that defendant asked her for photographs. Testimony that defendant stated he wanted to have sexual intercourse with MM. Testimony that defendant invited CP to sleep with him at his college.
MCL 768.27a provides, in pertinent part:
(1) Notwithstanding section 27, in a criminal case in which the defendant is accused of committing a listed offense against a minor, evidence that the defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant. If the prosecuting attorney intends to offer evidence under this section, the prosecuting attorney shall disclose the evidence to the defendant at least 15 days before the scheduled date of trial or at a later time as allowed by the court for good cause shown, including the statements of witnesses or a summary of the substance of any testimony that is expected to be offered.
Defendant claims that notice was not provided properly because the prosecutor filed the notice of intent and, rather than listing the other acts in the document, referred defendant to the other acts recounted in the police reports and other discovery. As the trial court found, the statute only requires the prosecutor to “disclose the evidence to the defendant at least 15 days” before trial. The statute does not preclude a prosecutor from incorporating the disclosure of the evidence in the notice of intent by reference. Furthermore, as the trial court found, any error in the prosecutor’s disclosure was harmless because defendant does not allege that he was unaware of the other-acts evidence. MCR 2.613(A).
Moreover, it was not error to conclude that the probative value of the other-acts evidence was not substantially outweighed by the danger of unfair prejudice. Our Supreme Court has explained that there are several considerations that may lead a court to exclude other-acts evidence.
These considerations include (1) the dissimilarity between the other acts and the charged crime, (2) the temporal proximity of the other acts to the charged crime, (3) the infrequency of the other acts, (4) the presence of intervening acts, (5) the lack of reliability of the evidence supporting the occurrence of the other acts, and (6) the lack of need for evidence beyond the complainant’s and the defendant’s testimony. [People v Watkins, 491 Mich 450, 487-488; 818 NW2d 296 (2012).]
Defendant claims that the other charged acts were dissimilar because he engaged in sexual penetration with AW and MM, not Cl] and he obtained naked photographs from MM and Cl] not AW. But in each case defendant formed a relationship with a much-younger girl at his high school. They used cell phones and text messaging to communicate. Defendant’s pursuit of all three victims occurred close together in time — during his senior year of high school and the year following. The other-acts evidence was also reliable because much of it was confirmed by the messages exchanged between defendant and the victims. The other acts did not “stir such passion” that the jury was unable to consider the merits of the case. People v Cameron, 291 Mich App 599, 611; 806 NW2d 371 (2011). Therefore, the probative value — showing the nature of the relationship between defendant and the victims and assisting the jury in assessing the credibility of the victims — substantially outweighed any unfair prejudice. The trial court did not abuse its discretion when it admitted the other-acts evidence under MCL 768.27a.
v
Defendant argues that joinder of the three cases was an abuse of discretion, which affected his constitutional right to remain silent. We disagree.
Whether joinder is appropriate is a mixed question of fact and law. People v Williams, 483 Mich 226, 231; 769 NW2d 605 (2009). “To determine whether joinder is permissible, a trial court must first find the relevant facts and then must decide whether those facts constitute ‘related’ offenses for which joinder is appropriate.” Id. This Court reviews a trial court’s factual findings for clear error and its interpretation of a court rule, which is a question of law, de novo. Id. However, the ultimate decision on permissive joinder of related charges lies “firmly within the discretion of trial courts.” See People v Breidenbach, 489 Mich 1, 14; 798 NW2d 738 (2011). This Court reviews de novo questions of constitutional law. People v Harper, 479 Mich 599, 610; 739 NW2d 523 (2007).
MCR 6.120 provides, in relevant part:
(B) Postcharging Permissive Joinder or Severance. On its own initiative, the motion of a party, or the stipulation of all parties, except as provided in subrule (C), the court may join offenses charged in two or more informations or indictments against a single defendant, or sever offenses charged in a single information or indictment against a single defendant, when appropriate to promote fairness to the parties and a fair determination of the defendant’s guilt or innocence of each offense.
(1) Joinder is appropriate if the offenses are related. For purposes of this rule, offenses are related if they are based on
(a) the same conduct or transaction, or
(b) a series of connected acts, or
(c) a series of acts constituting parts of a single scheme or plan.
(2) Other relevant factors include the timeliness of the motion, the drain on the parties’ resources, the potential for confusion or prejudice stemming from either the number of charges or the complexity or nature of the evidence, the potential for harassment, the convenience of witnesses, and the parties’ readiness for trial.
(3) If the court acts on its own initiative, it must provide the parties an opportunity to be heard.
Our Supreme Court has stated that offenses are “related” for purposes of MCR 6.120(B)(1)(c) when the evidence indicates that the “defendant engaged in ongoing acts constituting parts of his overall scheme or plan . . . .” Williams, 483 Mich at 235.
The evidence demonstrated that defendant engaged in ongoing acts related to his scheme of preying upon young, teenage girls from his high school. In each case, defendant used text messages to communicate with the victims and encouraged them to keep their communications secret. In at least two cases, defendant requested naked photographs from the victims and, if they refused, threatened to cut off ties with them. He also used his parents’ basement to isolate two of the young girls and sexually penetrate them.
The facts were not complex and presented little potential for confusion. Because defendant’s actions against each victim were admissible in each case pursuant to MCL 768.27a, each victim would have been required to testify in each trial if the cases were tried separately. Joinder offered convenience to the victims, who had already suffered harassment in their communities as a result of these cases.
Finally, defendant’s claim that joinder affected his constitutional right to remain silent has no merit. The trial court did not clearly err when it found incredible defendant’s claim that he would have testified only in MM’s case if the three cases were tried separately. Rather, because MM would have offered the same testimony in all three trials under MCL 768.27a, the trial court found that defendant would have also testified in response in all three trials.
In sum, we conclude the trial court did not err by ruling that the offenses were related and joinder was not an abuse of discretion.
vi
Defendant argues that the trial court improperly excluded as hearsay AW’s testimony regarding whether the police intimidated her and forced her to testify. Defendant argues that as a result of the exclusion of the testimony, he was deprived of his rights to confront witnesses, to present a defense, and to a fair trial. We agree that the challenged testimony was improperly excluded as hearsay, but conclude that the exclusion of the testimony was harmless. Defendant preserved this claim for appeal by arguing that it was not hearsay, but defendant did not argue that the exclusion of the evidence affected his constitutional rights. Therefore, the trial court’s exclusion of the evidence is reviewed for an abuse of discretion, People v King, 297 Mich App 465, 472; 824 NW2d 258 (2012), and the constitutional claims are reviewed for plain error affecting substantial rights, Carines, 460 Mich at 763, 774.
“ ‘Hearsay’ is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c). An out-of-court statement in troduced to show its effect on a listener, as opposed to proving the truth of the matter asserted, does not constitute hearsay under MRE 801(c). See Hilliard v Schmidt, 231 Mich App 316, 318; 586 NW2d 263 (1998), overruled in part on other grounds in Molloy v Molloy, 247 Mich App 348, 349-350 (2001). Such statements are “not offered for a hearsay purpose because [their] value does not depend upon the truth of the statement[s].” People v Lee, 391 Mich 618, 642; 218 NW2d 655 (1974).
Defense counsel asked AW, “Did anyone indicate to you what would happen if you didn’t come [to testify]?” When she responded affirmatively, defense counsel asked, “And that would be that you would be taken to jail?” This question was not offered to prove that AW would, in fact, go to jail if she refused to testify, but instead to prove why AW was testifying against her will. Therefore, the trial court erred by ruling that the question called for inadmissible hearsay. In any event, it was clear from other testimony in the record that AW did not want to testify and she did not want defendant to get in trouble. Defendant was not precluded from questioning AW’s credibility and, in closing argument, defense counsel maintained that AW only testified against defendant because she wanted the police “off her back.” Even though the trial court erred by excluding the challenged evidence, the error was harmless and did not affect defendant’s substantial rights.
VII
Defendant claims that the prosecutor improperly dismissed an accosting charge after the jury was selected, questioned him about the credibility of other witnesses, commented about the credibility of witnesses in closing argument, and appealed to the jury to sympathize with the victims because of their young age. Defendant failed to object to the prosecutor’s alleged errors. Therefore, his unpreserved claims are reviewed for plain error affecting substantial rights. People v Grant, 445 Mich 535, 545-546, 553; 520 NW2d 123 (1994).
First, defendant argues that the stipulation by the parties to dismiss one of two counts of accosting with regard to MM — after the jury had been selected and informed of the charges — constitutes error. But when this claim was raised in the posttrial motion for a new trial, the trial court found no impropriety or bad motive in the prosecutor’s decision to dismiss this charge. Whether to charge defendant was within the prosecutor’s discretion. People v Venticinque, 459 Mich 90, 100; 586 NW2d 732 (1998). Moreover, defendant cannot establish prejudice. Even though the prosecutor dismissed the second accosting charge, the jury was nevertheless aware of defendant’s repeated requests of MM for naked photographs.
Second, we agree that the prosecutor erred by asking defendant to comment on the credibility of several witnesses’ testimony. The Supreme Court has held that it is improper for a prosecutor to ask a defendant to comment on the credibility of prosecution witnesses because his or her opinion “is not probative of the matter.” People v Buckey, 424 Mich 1, 17; 378 NW2d 432 (1985). But a timely objection could have cured this error, id., and in its closing instructions to the jury, the trial court advised the jury that it was the “only judge[] of the facts” and it “must decide which witnesses [to] believe.” Therefore, defendant cannot establish that the prosecutor’s questions affected his substantial rights.
Third, contrary to defendant’s claim on appeal, the prosecutor did nothing in closing argument to suggest that he had personal knowledge that his witnesses were worthy of belief while defendant was not. Rather, the prosecutor argued that, based on the facts already in evidence, his witnesses were credible. Likewise, the prosecutor attacked defendant’s credibility on the basis of the unlikelihood that all of the witnesses had collaborated to lie. People v Couch, 49 Mich App 69, 72; 211 NW2d 250 (1973). Because the prosecutor did not insinuate that he had some special knowledge regarding whether defendant was testifying truthfully, but instead relied on the facts in the record, defendant cannot establish plain error. People v Thomas, 260 Mich App 450, 453-454; 678 NW2d 631 (2004). Moreover, even if the prosecutor relied on his improper questioning of defendant, no prejudice resulted because the trial court instructed the jury that the attorneys’ closing arguments were not evidence. People v Ackerman, 257 Mich App 434, 449; 669 NW2d 818 (2003).
Fourth, we conclude that the prosecutor did not improperly appeal to the jury to sympathize with the victims because of their young age. Rather, as the trial court found, age was at issue in the cases. The prosecutor was entitled to latitude in arguing his theory of the case, People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995), particularly because the victims testified that they participated in the charged conduct willingly with defendant and they did not want him to get in trouble, but the Legislature has enacted the age-based CSC and accosting statutes to protect children who are not capable of consenting to participate. See People v Armstrong, 490 Mich 281, 292 n 14; 806 NW2d 676 (2011), quoting People v Cash, 419 Mich 230, 247-248; 351 NW2d 822 (1984) (“ ‘[T]here is no issue of consent in a statutory rape charge because a victim below the age of consent is conclusively presumed to be legally incapable of giving his or her consent to sexual intercourse.’ ”).
Reversal is not required because there is no basis to conclude that the prosecutor’s charging decision, questioning, or argument resulted in the conviction of an actually innocent defendant or seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Defendant argues that the cumulative effect of the alleged prosecutorial errors warrants reversal even if the individual errors do not. But only “actual errors” are aggregated when reviewing a cumulative-error argument. Bahoda, 448 Mich at 292 n 64. Here, only the prosecutor’s cross-examination of defendant, requiring him to comment on the credibility of the prosecutor’s witnesses, constituted error. Again, this error, alone, did not affect defendant’s substantial rights and does not require reversal.
Defendant cannot establish that he was denied the effective assistance of counsel from the failure to object to the cross-examination of defendant regarding the credibility of the prosecutor’s witnesses. Defendant failed to provide any evidentiary support to overcome the presumption of trial strategy. People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973); People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). Moreover, in light of the overwhelming evidence presented at trial, the failure to object was not outcome-determinative. Any objection to the remaining claims of prosecutorial error would have been futile. Thomas, 260 Mich App at 457.
VIII
Next, defendant argues that the trial court erred by providing an incorrect instruction for the accosting charges and that defense counsel was ineffective for failing to object to the instruction. We disagree. Defendant’s claim of instructional error is waived because defense counsel stated on the record that he had no objection to the jury instructions. People v Kowalski, 489 Mich 488, 504-505; 803 NW2d 200 (2011). Moreover, even if the instruction was erroneous, defendant cannot establish that defense counsel’s failure to object so prejudiced him that he was deprived of a fair trial. Grant, 470 Mich at 485-486. MCL 750.145a provides:
A person who accosts, entices, or solicits a child less than 16 years of age, regardless of whether the person knows the individual is a child or knows the actual age of the child, or an individual whom he or she believes is a child less than 16 years of age with the intent to induce or force that child or individual to commit an immoral act, to submit to an act of sexual intercourse or an act of gross indecency, or to any other act of depravity or delinquency, or who encourages a child less than 16 years of age, regardless of whether the person knows the individual is a child or knows the actual age of the child, or an individual whom he or she believes is a child less than 16 years of age to engage in any of those acts is guilty of a felony punishable by imprisonment for not more than 4 years or a fíne of not more than $4,000.00, or both.
In Kowalski, the trial court explained the elements of the crime of accosting a child:
Because the Legislature used the disjunctive term “or,” it is clear that there are two ways to commit the crime of accosting a minor. A defendant is guilty of accosting a minor if the prosecution proves beyond a reasonable doubt that the defendant (1) accosted, enticed, or solicited (2) a child (or an individual whom the defendant believed to be a child) (3) with the intent to induce or force that child to commit (4) a proscribed act. Alternatively, a defendant is guilty of accosting a minor if the prosecution proves beyond a reasonable doubt that the defendant (1) encouraged (2) a child (or an individual whom the defendant believed to be a child) (3) to commit (4) a proscribed act. Taken as a whole, the statute permits conviction under two alternative theories, one that pertains to certain acts and requires a specific intent and another that pertains to encouragement only and is silent with respect to mens rea. [Kowalski, 489 Mich at 499.]
The trial court in Kowalski instructed the jury correctly with respect to the “encourages” prong, but the Supreme Court concluded that it erroneously omitted the actus reus element of the “accosts, entices, or solicits” prong of the offense. Id. at 502. In any event, the defendant’s attorney waived this error by stating that he had no objections to the instructions. Id. at 503-505. The Court further held that the defendant’s attorney was not ineffective because the jury would have convicted the defendant on the basis of the evidence regardless of the instructional error. Id. at 507, 510 n 38.
Here, too, defendant alleges that the trial court omitted the requirement that he intended to induce or force a child to commit a proscribed act in the “accosts, entices, or solicits” prong of the offense. The instruction provided, in relevant part:
First, that the defendant intended to accost, entice, or solicit a child .... Second, that the child was less than 16 years of age. Third, that the defendant intended to encourage [MM/CP] to do any of the following: A, commit an immoral act. B, submit to an act of gross indecency. C, any other act of depravity or delinquency.
Just like in Kowalski, defense counsel waived this claim of instructional error and was not ineffective because the jury would have convicted defendant on the basis of the evidence regardless of the instructional error. Defendant testified that he texted “dirty” messages to MM because she liked it and did not deny that he “persistently” requested that MM and CP send him naked photographs. The victims also testified that, if they did not send the photographs, defendant would ignore them or threaten to end their relationship — according to Cl] defendant told her he would stop coaching her in track. Defendant told the victims not to reveal their relationships with him to others. Because there was overwhelming evidence that defendant intended to induce the victims to send naked photographs to him, defense counsel’s failure to object to the absence of the specific-intent element of the “accosts, entices, or solicits” prong of the offense did not prejudice defendant. Defendant was not denied the effective assistance of counsel.
rx
Defendant also argues that a statement by the trial court during voir dire amounted to vouching and denied him the right to an impartial judge. We disagree.
In its voir dire instructions to the prospective jurors, the trial court explained:
The Information - - or, actually, there’s a couple of Informations in this case, because we’ve combined several files. But the Informations in these cases charge the defendant, Logan Gaines, with the crimes of accosting a child for an immoral purpose and criminal sexual conduct, third degree. We have three separate Informations. They have been combined because they’re kind of related, as you’ll learn through the course of this trial.
Defense counsel did not object to the characterization of the cases as “kind of related.” A trial court is presumed to be fair and impartial. People v Wade, 283 Mich App 462, 470; 771 NW2d 447 (2009). Thus, defendant has a heavy presumption of impartiality to overcome. People v Wells, 238 Mich App 383, 391; 605 NW2d 374 (1999). Absent deep-seated favoritism or antagonism making the exercise of fair judgment impossible, judicial rulings or opinions are not valid grounds for alleging bias. People v Jackson, 292 Mich App 583, 598; 808 NW2d 541 (2011). In reviewing challenged remarks, “[p]ortions of the record should not be taken out of context in order to show trial court bias against defendant; rather the record should be reviewed as a whole.” People v Paquette, 214 Mich App 336, 340; 543 NW2d 342 (1995).
Looking at the remarks as a whole, the instruction to the prospective jurors that the cases were “kind of related” was merely an attempt by the trial court to explain why three separate cases were being tried together. We concluded in Part V that the cases were in fact related to defendant’s overall scheme or plan of preying on young, teenage girls. Therefore, the trial court’s characterization was not improper and, contrary to defendant’s claim, the statement does not indicate that he was denied an impartial judge. Because the trial court’s characterization was not improper, any objection by defense counsel would have been futile. Therefore, defendant cannot establish that defense counsel was ineffective for failing to object. Thomas, 260 Mich App at 457.
x
Defendant argues that the trial court foreclosed the jury from requesting further clarification about the CSC-III instruction. We disagree.
During deliberations and after meeting with counsel at the bench, the trial court advised the jury: Defendant relies on the line of cases regarding a jury’s request for transcripts. That authority provides that the trial court errs by completely foreclosing the possibility of later reviewing the testimony. See People v Holmes, 482 Mich 1105 (2008); People v Carter, 462 Mich 206, 218; 612 NW2d 144 (2000); People v Davis, 216 Mich App 47, 57; 549 NW2d 1 (1996). Defendant’s reliance on this authority is misplaced, but in any event, the trial court did not completely foreclose further inquiry. The trial court had previously indicated on the record that it would be receptive to questions and would respond appropriately. Here, the trial court referred the jury to its initial instruction on CSC-III, which defendant does not allege was improper. People v Katt, 248 Mich App 282, 311; 639 NW2d 815 (2001) (a trial court is not obligated to repeat previously given instructions as long as the “court’s supplemental instruction was responsive to the jury’s request and did not serve to mislead the jury in any manner”). Therefore, reviewing the instructions as a whole, People v Henderson, 306 Mich App 1, 4; 854 NW2d 234(2014), we conclude that the trial court did not plainly err. Absent any error, defense counsel was not ineffective for failing to object to the trial court’s response to the jury’s question. Thomas, 260 Mich App at 457.
Ladies and gentlemen, I received your most recent note which says we need clarity on the third degree criminal sexual conduct. You have the instructions on that, so I would suggest you refer to those. And with that, I will excuse you at this time to go back and continue your deliberations.
XI
Defendant argues that he was denied his constitutional right to confront witnesses because two lines of inquiry were precluded: (1) the identities of other boys the victims sent naked photographs, and (2) whether the victims had similar sexual contact with other boys.
A primary interest secured by the Confrontation Clause is the right of cross-examination. Delaware v Van Arsdall, 475 US 673, 678; 106 S Ct 1431; 89 L Ed 2d 674 (1986); Douglas v Alabama, 380 US 415, 418; 85 S Ct 1074; 13 L Ed 2d 934 (1965). “[L]imitation[s] on cross-examination that prevent[ ] a defendant from placing before the jury facts from which bias, prejudice, or lack of credibility of a prosecution witness might be inferred constitutes denial of the constitutional right of confrontation.” People v Kelly, 231 Mich App 627, 644; 588 NW2d 480 (1998). However, “[t]he right of cross-examination does not include a right to cross-examine on irrelevant issues . . . .” People v Adamski, 198 Mich App 133, 138; 497 NW2d 546 (1993). “ ‘[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about. . . interrogation that is repetitive or only marginally relevant.’ ” Id., quoting Van Arsdall, 475 US at 679.
First, defendant claimed that the victims had actually suggested sending naked photographs to him. To support this defense, testimony that the victims sent photographs to others was arguably relevant and thus permissible at trial. But the identities of the other alleged recipients would not have had any significant tendency to make the defense more or less probable. MRE 401. Absent any showing that the identities of the other alleged recipients had any particular relevance, defendant’s right of confrontation was not denied when the trial court precluded testimony about the identities of other boys the victims may have sent naked photographs. Adamski, 198 Mich App at 138.
Second, defendant claims that evidence of the victims’ sexual activity with others of the “same type” alleged to have occurred with him should have been admitted. Only MM and AW alleged that they had any sexual contact with defendant. Accordingly, the question before this Court is whether defendant should have been allowed to offer evidence that MM and AW had similar sexual contact with other boys. MCL 750.520j provides, in relevant part:
(1) Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct shall not be admitted under sections 520b to 520g unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:
(a) Evidence of the victim’s past sexual conduct with the actor.
(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.
A “victim” is defined in MCL 750.520a(s) as “the person alleging to have been subjected to criminal sexual conduct.” Here, MM testified that defendant repeatedly digitally penetrated her vagina and AW testified that she had sexual intercourse with defendant. Therefore, MM and AW were victims under MCL 750.520j because they alleged that they were subjected to criminal sexual conduct. Evidence of any instances of sexual contact they had with other boys was inadmissible.
Defendant claims evidence of the other instances of sexual contact should have been admissible because the victims were not just testifying as victims in their own cases, but were testifying as witnesses in the other cases; defendant claims that victims, not witnesses, are protected by MCL 750.520j. Defendant’s argument is unpersuasive because, regardless whether MM and AW were testifying to support their own case or to provide other-acts evidence under MCL 768.27a for the other cases, they still alleged that they were “subjected to criminal sexual conduct” and were “victims” under MCL 750.520a(s).
Defendant also claims that even if evidence of the other instances of sexual contact was inadmissible in the prosecution for CSC-III, the evidence should have been admitted in the prosecution for accosting; accosting is not protected by MCL 750.520j. Again, in his defense to the accosting charges, defendant claimed that the victims first initiated sending naked photographs to him and that they sent naked photographs to others. Whether the victims had sexual contact with others was not relevant to his defense to those charges. MRE 401. Defendant had no right of confrontation with regard to irrelevant issues. Adamski, 198 Mich App at 138. Moreover, even if the evidence was somehow relevant, the trial court did not clearly err by determining, in response to the motion for a new trial, that the proposed testimony raised “concerns about harassment, prejudice, confusion of the issues . . . .” Defendant was not denied his constitutional right of confrontation.
XII
Defendant argues that MCL 750.145a is unconstitutional on its face, claiming it is both vague and over-broad. We disagree. Again, this Court reviews de novo questions of constitutional law. Harper, 479 Mich at 610.
Again, MCL 750.145a provides:
A person who accosts, entices, or solicits a child less than 16 years of age, regardless of whether the person knows the individual is a child or knows the actual age of the child, or an individual whom he or she believes is a child less than 16 years of age with the intent to induce or force that child or individual to commit an immoral act, to submit to an act of sexual intercourse or an act of gross indecency, or to any other act of depravity or delinquency, or who encourages a child less than 16 years of age, regardless of whether the person knows the individual is a child or knows the actual age of the child, or an individual whom he or she believes is a child less than 16 years of age to engage in any of those acts is guilty of a felony punishable by imprisonment for not more than 4 years or a fíne of not more than $4,000.00, or both.
There is a presumption that a statute is constitutional, and this Court will construe it this way unless its unconstitutionality is “clearly apparent.” People v Hubbard (After Remand), 217 Mich App 459, 483-484; 552 NW2d 493 (1996). A statute can be unconstitutionally vague if it: (1) fails to provide fair notice to the public of the proscribed conduct, (2) gives the trier of fact unstructured and unlimited discretion to determine if an offense has been committed, or (3) is overbroad and impinges on First Amendment rights. People v Nichols, 262 Mich App 408, 409-410; 686 NW2d 502 (2004). To evaluate a vagueness challenge, a court must examine the entire text of the statute and give the words of the statute their ordinary meanings. People v Hrlic, 277 Mich App 260, 263; 744 NW2d 221 (2007). Vagueness challenges must be considered in light of the facts at issue. Id. “A statute is unconstitutionally vague if persons of ordinary intelligence must necessarily guess at its meaning.” People v Pierce, 272 Mich App 394, 398-399; 725 NW2d 691 (2006). A “statute is sufficiently definite if its meaning can fairly be ascertained by reference to judicial interpretations, the common law, dictionaries, treatises, or the commonly accepted meanings of words.” People v Lueth, 253 Mich App 670, 676; 660 NW2d 322 (2002).
The dictionary definition of “immoral” is “violating moral principles” or “licentious; lascivious.” The term “licentious” is defined as “sexually unrestrained” and the term “lascivious” means “arousing sexual desire.” “Indecent” means “offending against standards of morality or propriety” and “deprave” means “to make morally bad or evil; vitiate; corrupt.” Finally, “delinquency” is defined as “wrongful, illegal, or antisocial behavior.” Random House Webster’s College Dictionary (2001). Persons of ordinary intelligence need not guess at the meaning of these terms in MCL 750.145a because, when read in context with the rest of the statute, the language refers to criminal acts and is intended to protect children from being induced, forced, or encouraged to commit such acts.
Contrary to defendant’s claim on appeal, read in context, the statute provides fair notice to the public of the proscribed conduct and does not give a trier of fact unstructured and unlimited discretion to determine whether an offense has been committed. No reasonable person would have to guess whether asking 13- or 14-year-old girls for photographs of them naked, particularly of their breasts and vaginas, is immoral conduct under the statute. Therefore, defendant’s vagueness challenge must fail because he cannot establish that no circumstances exist under which the statute would be valid. People v Abraham, 256 Mich App 265, 280; 662 NW2d 836 (2003) (“The challenger to the face of a statute must establish that no circumstances exist under which it would be valid.”).
A statute is overbroad when it precludes or prohibits constitutionally protected conduct in addition to conduct or behavior that it may legitimately regulate. People v McCumby, 130 Mich App 710, 714; 344 NW2d 338 (1983). Under the overbreadth doctrine, a defendant may “challenge the constitutionality of a statute on the basis of the hypothetical application of the statute to third parties not before the court.” People v Rogers, 249 Mich App 77, 95; 641 NW2d 595 (2001). Defendant argues that the statute regulates both speech and conduct. Therefore, defendant must demonstrate that the overbreadth of the statute is both real and substantial — there is a “ ‘realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds.’ ” Id. at 96, quoting Los Angeles City Council v Taxpayers for Vincent, 466 US 789, 801; 104 S Ct 2118; 80 L Ed 2d 772 (1984). The statute will not be found to be facially invalid on overbreadth grounds, however, “where it has been or could be afforded a narrow and limiting construction by state courts or if the unconstitutionally overbroad part of the statute can be severed.” Rogers, 249 Mich App at 96.
MCL 750.145a proscribes accosting or encouraging children for the purpose of inducing them to engage in criminal activity. This statute does not pose realistic dangers to First Amendment protections. Because the statute is aimed at criminal activity, it does not apply to defendant’s scenarios, such as a mother’s recommending an abortion to her child or skipping mass on Sundays. Therefore, MCL 750.145a is not facially over-broad. Defendant’s constitutional challenge to MCL 750.145a is without merit.
XIII
Defendant claims that the cumulative effect of errors at trial deprived him of a fair trial and that reversal is required. We disagree. “ ‘The cumulative effect of several errors can constitute sufficient prejudice to warrant reversal even when any one of the errors alone would not merit reversal, but the cumulative effect of the errors must undermine the confidence in the reliability of the verdict before a new trial is granted.’ ” People v Brown, 279 Mich App 116, 146; 755 NW2d 664 (2008) , quoting People v Dobek, 274 Mich App 58, 106; 732 NW2d 546 (2007). Because we have found support in the record for only two of defendant’s claims of error, and because those errors were harmless, they neither separately nor cumulatively warrant a new trial.
XIV
Last, defendant argues that the trial court erred by ordering him to pay restitution for the general cost of investigating and prosecuting his criminal activity. We agree. Although defendant failed to preserve this issue, this Court may review the trial court’s restitution award for plain error affecting substantial rights. People v Buie, 285 Mich App 401, 407; 775 NW2d 817 (2009) .
Restitution is afforded both by statute and by the Michigan Constitution. Const 1963, art 1, § 24; People v Grant, 455 Mich 221, 229; 565 NW2d 389 (1997). The purpose of restitution is to “allow crime victims to recoup losses suffered as a result of criminal conduct.” Id. at 230. The Crime Victim’s Rights Act, MCL 780.751 et seq., determines whether a sentencing court’s restitution order is appropriate. People v Crigler, 244 Mich App 420, 423; 625 NW2d 424 (2001). [People v Newton, 257 Mich App 61, 68; 665 NW2d 504 (2003).]
Under MCL 780.766(1), victims entitled to restitution include a “governmental entity. . . that suffers direct physical or financial harm as a result of a crime.” (Emphasis added.)
In Crigler, 244 Mich App at 423, this Court determined that the loss of “buy money” paid by a narcotics enforcement team for controlled substances constituted direct financial harm resulting from the defendant’s crime. Id. at 426-427. This Court noted:
The loss of buy money is qualitatively unlike the expenditure of other money related to a criminal investigation, because it results directly from the crime itself; that is, the money is lost when it is exchanged for the controlled substance. The payment of salaries and overtime pay to the investigators, the purchase of surveillance equipment, the purchase and maintenance of vehicles, and other similar expenditures are “costs of investigation” unrelated to a particular defendant’s criminal transaction. These expenditures would occur whether or not a particular defendant was found to be engaged in the sale of controlled substances. [Id. at 427.]
In Newton, this Court relied on the dicta in Crigler that the payment of the costs of the investigation a crime, such as salaries and equipment, would occur regardless whether a particular defendant committed the crime and therefore could not be recouped through restitution. Newton, 257 Mich App at 69-70. Therefore, the Newton panel determined that the $2,500 the defendant was ordered to pay the sheriff’s department as reimbursement for its cost in the investigation of the defendant was plain error affecting the defendant’s substantial rights. Id. at 70.
Here, the trial court ordered defendant to pay restitution for officer investigation (24 hours for $864), a forensic analyst (102 hours for $3,672), and discs ($6.64). These costs are comparable to costs of the investigation in Newton and distinguishable from the direct cost of the buy money paid in Crigler. There fore, the trial court erred by ordering restitution and we vacate that portion of the judgment of sentence ordering $4,542.64 in restitution.
xv
We affirm defendant’s convictions, vacate the order of restitution, and remand to the trial court for entry of an amended judgment of sentence consistent with this opinion. We do not retain jurisdiction.
Fitzgerald and Markey, JJ., concurred with Wilder, P.J.
MM testified that defendant was not the first person to whom she had sent naked photographs.
Defendant’s sister testified, however, that she went downstairs repeatedly under the guise of doing laundry to check up on the children and that whenever she went downstairs, the lights and television were on.
Defendant testified that he thought CP was 16 years old.
On cross-examination, CP testified that she could have first sent defendant a picture.
MCL 750.520d(1)(a) provides: “A person is guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration with smother person” and the “other person is at least 13 years of age and under 16 years of age.”
Defendant did not make such a request under MCL 767.51.
Any related claim regarding the sufficiency or great weight of the evidence does not require reversal because time is not an element of the offenses. See People v Dobek, 274 Mich App 58, 83; 732 NW2d 546 (2007); MCL 750.145a.
Defendant claims the trial court failed to conduct its balancing of prejudicial effect and probative value under MRE 403 on the record, hut a trial court need not state on the record how it balanced the prejudicial effect and probative value. People v Smith, 243 Mich App 657, 675; 625 NW2d 46 (2000). The trial court is presumed to know the law, see People v Garfield, 166 Mich App 66, 79; 420 NW2d 124 (1988), and it ruled that MRE 403 applied to this evidence. Defense counsel was not ineffective for failing to making a futile objection to the trial court’s failure to conduct balancing under MRE 403 on the record. See People v Thomas, 260 Mich App 450, 457; 678 NW2d 631 (2004).
Defendant’s claim that the admission of other-acts evidence violates due process is moot because the admission of the evidence was subject to the MRE 403 balancing test. Watkins, 491 Mich at 456 n 2. Moreover, defendant argues that the trial court erred by failing to instruct the jury about other-acts evidence with CJI2d 20.28a. But this argument is waived because defense counsel stated on the record that he had no objection to the jury instructions. People v Kowalski, 489 Mich 488, 504-505; 803 NW2d 200 (2011). Furthermore, defendant has not provided any evidentiary support to overcome the presumption of strategy with respect to defense counsel’s waiver. People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973); People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).
We reject the prosecutor’s argument that the trial court could have alternatively ordered the costs to be repaid under the general taxing authority of MCL 769.34(6), which provides, “As part of the sentence, the court may also order the defendant to pay any combination of a fine, costs, or applicable assessments. The court shall order payment of restitution as provided by law.” Our Michigan Supreme Court recently explained, “MCL 769.34(6) allows courts to impose only those costs or fines that the Legislature has separately authorized by statute.” People v Cunningham, 496 Mich 145, 158 n 11; 852 NW2d 118 (2014). | [
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Murray, P.J.
This is an inheritance dispute between the natural children of Everett and Mary Alice Casey, Kathryn and Kirk Casey, and Renee and Bruce Keene, who claim to be the offspring of Everett and their mother’s (Corinne Keene) adulterous affair in the 1960s. Everett and Corinne were both married during their alleged affair. In these consolidated appeals, appellants, Renee and Bruce Keene, appeal as of right the order granting summary disposition in favor of appellee Kathryn Casey. Kathryn Casey filed three separate motions for summary disposition below and argued: (1) neither Renee nor Bruce were interested persons or heirs of the decedent, Everett; (2) the decedent’s 1997 will is valid and unrevoked; and (3) the decedent did not gift the contents of the safe located at his company’s office to Bruce before his death. Renee and Bruce challenge the probate court’s determination that they are not interested persons or heirs of the decedent. Bruce also challenges the probate court’s determination that the decedent did not gift the contents of his safe to him. We affirm.
I. FACTS AND PROCEEDINGS
The decedent, Everett Casey, and his wife, Mary Alice, who predeceased him, had two children during their marriage, Kathryn and Kirk Casey. During the latter part of the decedent’s lifetime, Bruce worked for the decedent’s company, Precision Standard Inc. (PSI). In July 1997, the decedent executed a will and trust, naming in his trust Kathryn and Kirk as his only children. After the decedent’s death on March 24, 2012, Kathryn filed a petition for probate and sought to admit the decedent’s 1997 will to probate. Renee and Bruce filed demands for notice and objections to the petition for probate, claiming that the decedent was their biological father. Renee and Bruce alleged that the decedent and their mother, Corinne Keene, had an extramarital affair while she was married to Robert Keene, the man listed as Bruce and Renee’s father on their birth certificates. Robert Keene died in 1966, and Renee and Bruce did not seek to establish the decedent’s paternity until the present action.
The probate court issued a thorough written opinion and order granting Kathryn’s motions for summary disposition on the grounds that (1) Renee and Bruce were not interested persons, (2) the 1997 will was valid and unrevoked, and (3) no genuine issue of material fact existed that the decedent did not gift the contents of the safe to Bruce. The decedent’s 1997 will was admitted to probate and the court ordered an evidentiary hearing to determine the amount of money in the decedent’s safe at the time of his death.
With respect to the interested-person determination, the probate court ruled that MCL 700.2114(1)(b)(v) was inapplicable because the plain language of the statute requires an initial finding either that Renee and Bruce were born out of wedlock or that they were born or conceived during the marriage but were not the issue of the marriage before the court could make a natural-parent determination under MCL 700.2114(1)(b)(v). The court reasoned that because Corinne and Robert Keene were married when Bruce and Renee were born, Robert Keene is the presumed father and “there has been no determination that the children were not an issue of the marriage,” and thus, Renee and Bruce were not interested persons.
II. ANALYSIS
A. INTERESTED PERSONS
Renee and Bruce contend that the probate court erred in its interpretation and application of MCL 700.2114(1)(b)(v) and improperly granted summary disposition in favor of Kathryn on this basis. This challenge involves questions of statutory interpretation and standing, which we review de novo. In re MCI Telecom Complaint, 460 Mich 396, 413; 596 NW2d 164 (1999); Mich EdAss’n v Superintendent of Pub Instruction, 272 Mich App 1, 4; 724 NW2d 478 (2006). Additionally, this Court reviews de novo a probate court’s decision on a motion for summary disposition. Wortelboer v Benzie Co, 212 Mich App 208, 213; 537 NW2d 603 (1995). In reviewing a motion brought under MCR 2.116(C)(5) (regarding whether a party lacks the capacity to sue), this Court considers the pleadings, depositions, admissions, affidavits, and other documentary evidence submitted by the parties. McHone v Sosnowski, 239 Mich App 674, 676; 609 NW2d 844 (2000). A motion under MCR 2.116(C)(8) tests the legal sufficiency of the claim as pleaded, and all factual allegations and reasonable inferences supporting the claim are taken as true. Id.
“The paramount rule of statutory interpretation is that we are to effect the intent of the Legislature.” Omelenchuk v City of Warren, 466 Mich 524, 528; 647 NW2d 493 (2002) (citation and quotation marks omitted). “To do so, we begin with the statute’s language. If the statute’s language is clear and unambiguous, we assume that the Legislature intended its plain meaning, and we enforce the statute as written.” PNC Nat’l Bank Ass’n v Dep’t of Treasury, 285 Mich App 504, 506; 778 NW2d 282 (2009) (citation and quotation marks omitted). “In construing a statute, this Court should give every word meaning, and should seek to avoid any construction that renders any part of a statute surplus or ineffectual.” In re Turpening Estate, 258 Mich App 464, 465; 671 NW2d 567 (2003). It is well established that “to discern the Legislature’s intent, statutory provisions are not to be read in isolation; rather, context matters, and thus statutory provisions are to be read as a whole.” Robinson v City of Lansing, 486 Mich 1, 15; 782 NW2d 171 (2010). Provisions not included by the Legislature should not be included by the courts. Mich Basic Prop Ins Ass’n v Office of Fin & Ins Regulation, 288 Mich App 552, 560; 808 NW2d 456 (2010).
At the time of the decedent’s death in 2012, the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., was in effect, and accordingly governs the question before us. See In re Adolphson Estate, 403 Mich 590, 593; 271 NW2d 511 (1978) (“Determinations of heirs are to be governed by statutes in effect at the time of death, and an adoption statute in effect at the time of death is controlling.”) (citation omitted). That statute defines “interested person” — the category of people entitled to notice of probate proceedings — to include a child or heir, among others. MCL 700.1105(c). Because Renee and Bruce claim to be interested persons as the biological children of the decedent, the parties focused their attention on MCL 700.2114, which sets forth the framework for establishing the parent-child relationship for purposes of intestate succession. That section provides, in relevant part:
(1) Except as provided in subsections (2), (3), and (4), for purposes of intestate succession by, through, or from an individual, an individual is the child of his or her natural parents, regardless of their marital status. The parent and child relationship may be established in any of the following manners:
(a) If a child is born or conceived during a marriage, both spouses are presumed to be the natural parents of the child for purposes of intestate succession. A child conceived by a married woman with the consent of her husband following utilization of assisted reproductive technology is considered as their child for purposes of intestate succession. Consent of the husband is presumed unless the contrary is shown by clear and convincing evidence. If a man and a woman participated in a marriage ceremony in apparent compliance with the law before the birth of a child, even though the attempted marriage may be void, the child is presumed to be their child for purposes of intestate succession.
(b) If a child is born out of wedlock or if a child is born or conceived during a marriage but is riot the issue of that marriage, a man is considered to be the child’s natural father for purposes of intestate succession if any of the following occur:
(v) Regardless of the child’s age or whether or not the alleged father has died, the court with jurisdiction over probate proceedings relating to the decedent’s estate determines that the man is the child’s father, using the standards and procedures established under the paternity act, 1956 PA 205, MCL 722.711 to 722.730.
(5) Only the individual presumed to be the natural parent of a child under subsection (l)(a) may disprove a presumption that is relevant to that parent and child relationship, and this exclusive right to disprove the presumption terminates on the death of the presumed parent. [MCL 700.2114 (emphasis added).]
As a preliminary matter, we recognize that the statute clearly provides that, for purposes of intestate succession, a child is to take from his or her natural parent, “regardless of their marital status.” MCL 700.2114(1). The statutory language also could not more clearly establish that the parents of children born during a marriage are presumed to be the natural parents of those children. MCL 700.2114(1)(a). The statute then provides that the parent-child relationship with the alleged natural parent can be established in a number of ways. Relevant to this case, the statute provides that (1) “if” a child is born or conceived during a marriage but is not the issue of that marriage, then (2) the court can determine whether the alleged father is the child’s natural one under the procedures of the Paternity Act, MCL 722.711 et seq. MCL 700.2114(1)(b)(c). In other words, “if” a person can establish that he was born or conceived during a marriage but is not the issue of that marriage (and therefore has disclaimed that the presumed natural father is not the natural father), the court can then proceed to the next step of DNA testing under the Paternity Act to determine whether the alleged father (here the decedent) is the natural parent of Renee and Bruce.
The Legislature’s use of the word “if” at the start of the subsection and the relevant clause is critical. The Random House Webster’s College Dictionary (2001) offers several definitions of “if,” the more pertinent being: “1. in case that; granting or supposing that; on condition that[.]” See Hottmann v Hottmann, 226 Mich App 171, 178; 572 NW2d 259 (1997) (a dictionary definition is appropriately used to construe undefined statutory language according to common and approved usage). Thus, the use of “if” in the first and second clauses of MCL 700.2114(1)(b) sets forth the alternative conditions upon which the rest of that subsection is premised. Absent satisfaction of one of those conditions, the remainder of subsection (1)(b) does not come into play.
Under these provisions, a presumption exists that Bruce and Renee are the children of Corinne and Robert Keene, as they were married when Bruce and Renee were conceived (a fact established by their birth certificates). MCL 700.2114(1)(a). Because of that undisputed fact, Renee and Bruce established that they were born during a marriage. But what of the proof that they were not the issue of that marriage? Bruce and Renee claim that DNA evidence purportedly showing that they are the biological children of the decedent accomplishes that task.
However, the plain language of MCL 700.2114(5) provides the exclusive means by which the presumption of natural parenthood set forth in MCL 700.2114(1)(a) may be overcome, and it specifies that the only person holding the right to challenge the presumption is the presumptive natural parent, and the right to attempt to overcome the presumption ends when the presumed parent is deceased. Here, that person is Robert Keene. However, since Robert Keene has already died, the exclusive right to disprove the presumption that Renee and Bruce are his natural children has terminated. Accordingly, Renee and Bruce do not satisfy the express criteria of MCL 700.2114(1)(b). To hold otherwise would effectively allow an additional method to rebut the presumption of paternity provided in subsection (5) and render the relevant portion of subsection (1)(b) superfluous. That we cannot do. Turpening Estate, 258 Mich App at 465.
Before moving on, we make two additional points. First, appellants’ reliance upon In re Daniels Estate, 301 Mich App 450,453-454; 837 NW2d 1 (2013), is of no moment. In that case our Court ruled that MCL 700.2114(1)(b) did not first require an underlying find ing that a child is the biological child of the decedent before MCL 700.2114(1)(b)(i) through (vi) come into play. Id. at 459. That argument is not being made here. Moreover, the child in that case was undisputedly born out of wedlock. Id. at 452. Accordingly, one of the conditions of MCL 700.2114(1)(b) was satisfied before the Court proceeded to analyze MCL 700.2114(1)(b)(i) through (vi). In contrast, because Renee and Bruce cannot rebut the presumption of natural parentage of Robert Keene, we can proceed no further under subsection (1)(b). Our holding is fully consistent with Daniels and, just as importantly, the statute.
Second, we reject Bruce and Renee’s assertion that the subsection of the statute allowing for testing under the paternity act (MCL 700.2114(b)(v)) to determine who the natural parent is would have no meaning if there was an initial requirement to show (under MCL 700.2114(b)) that the child was born out of wedlock (which presumably is accomplished by DNA testing as it is under the paternity act). What that argument glosses over is the different purposes of each showing. It is one thing to prove that a child’s presumed parent is not the natural parent; it is a wholly separate thing to prove that another person is the child’s natural parent. These are separate issues, and our reading of the statute is that the Legislature has conditioned proof of the former as being required before a child can proceed to proof of the latter.
B. GIFT
Finally, we reject Bruce’s contention that a genuine issue of material fact exists regarding whether the decedent made an inter vivos gift of the contents of his safe to Bruce. Our review of this issue implicates MCR 2.116(0(10). A motion for summary disposition under MCR 2.116(0(10) tests the factual sufficiency of the complaint. Joseph v Auto Club Ins Ass’n, 491 Mich 200, 206; 815 NW2d 412 (2012). This Court reviews a “motion brought under MCR 2.116(0(10) by considering the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party.” Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). Review is limited to the evidence that was presented to the probate court at the time the motion was decided. Innovative Adult Foster Care, Inc v Ragin, 285 Mich App 466, 475-476; 776 NW2d 398 (2009). “Summary disposition under MCR 2.116(C)(10) is appropriately granted if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” Greene v A P Prod, Ltd, 475 Mich 502, 507; 717 NW2d 855 (2006) (quotation marks and citations omitted). A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the nonmoving party, leaves open an issue upon which reasonable minds could differ. Debano-Griffin v Lake Co, 493 Mich 167, 175; 828 NW2d 634 (2013).
“[F]or a gift to be valid, three elements must be satisfied: (1) the donor must possess the intent to transfer title gratuitously to the donee, (2) there must be actual or constructive delivery of the subject matter to the donee, unless it is already in the donee’s possession, and (3) the donee must accept the gift.” Davidson v Bugbee, 227 Mich App 264, 268; 575 NW2d 574 (1997). “A gift inter vivos is not only immediate, but absolute and irrevocable.” In re Reh’s Estate, 196 Mich 210, 217; 162 NW 978 (1917). Delivery must be unconditional and must place the property within the dominion and con trol of the donee. Osius v Dingell, 375 Mich 605, 611; 134 NW2d 657 (1965). Additionally, an inter vivos gift “must be fully consummated during the lifetime of the donor and must invest ownership in the donee beyond the power of recall by the donor.” Id.
Here, as the probate court found, Bruce’s affidavit fails to establish delivery. Indeed, although Bruce claims the decedent provided him the combination to the safe and indicated that the contents of the safe belonged to him, it was the decedent who retained dominion and control over the safe and its contents. The safe was located in the decedent’s office at PSI, a company exclusively owned by the decedent. In addition, the decedent retained control of the combination, which he could change at any time, thereby precluding Bruce’s access to the safe’s contents. This means the decedent retained not only control, but the power of recall. There was no delivery. Id.
Affirmed.
No costs will be allowed on appeal. MCR 7.219(A).
Jansen, J., concurred with Murray, P.J.
The decedent’s will left certain property to his children, bnt did not explicitly state their names.
Throughout these proceedings the parties have operated under the correct understanding that MCL 700.1105, which relates to intestate succession, applies to this issue despite the decedent’s having a valid will at the time of his death. That is because EPIC describes who is entitled to notice to challenge a will, and the statutory definitions lead us to the intestate-succession provisions of MCL 700.2114. Specifically, notice must be given to all interested persons, MCL 700.1401, and interested persons is defined to include a “child,” MCL 700.1105(c), and child is in turn defined as “an individual entitled to take as a child under this act by intestate succession from the parent whose relationship is involved.” MCL 700.1103(f). That definition thus requires application of MCL 700.2114.
In response to our concurring colleague, we simply state that although there may be more than one dictionary definition of a term, this does not render the statute ambiguous, Lash v Traverse City, 479 Mich 180, 189 n 12; 735 NW2d 628 (2007), for when faced with multiple definitions the courts must look to the context in which the word is used in the statute before determining the correct definition to apply, Feyz v Mercy Mem Hosp, 475 Mich 663, 684 n 62; 719 NW2d 1 (2006). Both the state and federal courts long ago concluded that utilizing dictionaries is a proper and objective means to define undefined words, with the context of the word being important in those circumstances in which various definitions of the same word exist. See Taniguchi v Kan Pacific Saipan, Ltd, 566 US_,_; 132 S Ct 1997,2002-2003; 182 L Ed 2d 903, 912-913 (2012) (canvassing numerous dictionaries for the common understanding of an undefined statutory term), Spectrum Health Hosps v Farm Bureau Mutlns Co, 492 Mich 503, 516; 821 NW2d 117 (2012), and Feyz, 475 Mich at 684 n 62. In any event, the definition of “if” we utilize today is certainly a common and ordinary one as reflected in several different dictionaries. See, e.g., The American Heritage College Dictionary (1994) and Oxford American Dictionary (1980).
Based on this conclusion, Benee and Bruce lack standing to challenge the admission of the decedent’s 1997 will to probate. Kathryn’s argument that this issue has been abandoned on appeal is therefore moot.
The probate court should have relied exclusively on the statutory language, as the citation to In re Quintero Estate, 224 Mich App 682; 569 NW2d 889 (1997), was misplaced. See In Re Daniels Estate, 301 Mich App at 459. | [
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Beasley, P.J.
The various defendants in these consolidated cases were charged with various counts of obtaining money over $100 by false pretenses, contrary to MCL 750.218; MSA 28.415. In each case, there was a conflict over whether various amounts of money obtained could be aggregated in order to charge defendants with the felony charge of obtaining money of a value greater than $100 by false pretenses, rather than the misdemeanor of obtaining money of $100 in value or less. In Docket No. 95446, the felony portion of the charge was dismissed by the examining magistrate, who refused to bind over on that count. In Docket Nos. 93595, 93597 and 93601, the examining magistrates bound defendants over on the felony charge, but the Recorder’s Court dismissed it. In the remaining cases, defendants waived preliminary examination and the felony charges were dismissed in the Recorder’s Court. From all these decisions, the prosecutor appeals.
All defendants owned or operated filling stations and allegedly misrepresented that a full measure of gasoline was being delivered to the customer at the price per gallon as shown on the pump display. The evidence indicated that in fact the pumps had been tampered with and recalibrated to alter the flow of fluid through the pump. The Michigan State Police set up a number of undercover buys from these stations in which an investigator would purchase gasoline using a car equipped with a special tank, which would permit the Department of Agriculture to measure the amount of gasoline actually dispensed. All defendants allegedly were giving out less gasoline than they charged for. Additionally, some defendants misrepresented that they were selling high-octane gasoline when, in fact, they were not. In each instance, the actual amount of which the officer was defrauded was considerably less than $100.
In order to reaqh'the statutory requirement of "over $100,” making the offense a felony, the prosecutor aggregated the amounts of actual undercover buys together with the statistical projections for the amounts obtained during the same period of time for all customers using those pumps. The question before us is simply this: Was there a separate misdemeanor committed every time an officer or customer bought gasoline at the misrepresented price and amount, or did each defendant instead engage in a course of conduct over time which amounted to a single felony? The prosecutor points out that the defendants cannot plausibly be imagined to be switching the pump calibrations back and forth with tremendous frequency, so that once a pump was registering falsely, it did so over an extended period of time. However, it is also unquestioned that each customer who would have been defrauded under such a scheme would have lost much less than $100 at any one time, so that to see this as a felony one must view the "victim” of the singular felony to be. either the aggregate mass of defrauded customers or the public at large.
The criminal statute involved, MCL 750.218; MSA 28.415, provides in pertinent part:
Any person who, with intent to defraud or cheat, shall designedly, ... by any . . . false pretense, . . . obtain from any person any money or personal property . . ., or by means of any false weights or measures obtain a larger amount or quantity of property than was bargained for, or by means of any false weights or measures sell or dispose of a less amount or quantity of property ’ than was bargained for, if such . . . money, personal property, . . . larger amount obtained or less amount disposed of, shall be of the value of $100.00 or less, shall be guilty of a misdemeanor; and if such . . . money, personal property, . . .' larger amount obtained or less amount disposed of shall be of the value of more than $100.00, such person shall be guilty of a felony, punishable by imprisonment in the state prison not more than 10 years or by a fine of not more than $5,000.00.
The courts below all relied on People v Robinson in reaching their decisions. In Robinson, the defendant became employed, but continued to receive unemployment checks. She received nine biweekly checks, no one of which was for more than $84, but which nine checks totalled more than $100. This Court said that it was impermissible to charge her with one count of felony false pretenses instead of the individual misdemeanor counts. The Court borrowed some reasoning from the "same transaction” test used in double jeopardy cases, in which the crucial question is whether "the series of acts were in a continuous time sequence and displayed a single intent and goal.” Here is the Court’s conclusion:
We are of the opinion that in the instant case defendant’s individual and separate acts did not meet the criterion of the same transaction test, viz., occurring in a continuous time sequence and displaying a single intent and goal. Initially, we note that there was a two-week interval between each of defendant’s nine larcenies. Furthermore, as each act necessitated an additional false statement, they were not the result of a single intent and goal. Every two weeks, defendant had to make another false statement in order to get an additional separate and distinct benefits check. Since defendant could only receive another check after falsely swearing anew that she had not worked and thus was still eligible for unemployment benefits, each of the misrepresentations was distinct and separate.[ ]
The situation in Robinson is similar to this one, in that a separate misrepresentation was required each time a customer bought gasoline from the filling station. Indeed, there was a different misrepresentation in each purchase, showing a different false amount of gasoline pumped into a different tank at a different total price. Because there were differing victims as well, it appears that the facts before us describe an even more clearly cut group of different misdemeanors than in the Robinson case. There, at least, one could argue that there was a single victim whose aggregate loss amounted to more than $100.
The Robinson Court placed a great deal of reliance on the 1890 case of People v Johnson, in which the defendant was held to have committed one large theft, rather than two small thefts, when he took property belonging to two people, but did it at the same time and place. The Johnson Court said:
Two distinct felonies cannot be charged in one count of an information. Neither can two or more charges for larceny, not within the jurisdiction of the circuit court to try by virtue of its original jurisdiction, be united in one count, so as to bring the larceny within the original jurisdiction of the court. A single offense of larceny may be charged in one count, where the articles stolen are of different values, and belong to different owners. The criterion is, was the larceny one act, committed at one time and place? If so, the property stolen may be of different kinds and values, and belong to different persons.[ ]
The prosecutor argues that the precedent and reasoning used in Robinson were undermined, if not eliminated altogether, by the Supreme Court’s decision in People v Wakeford. But, Wakeford was not concerned with the aggregation of misdemeanors into felonies, nor with larceny or false pretenses, nor did it ever mention Robinson. It was concerned, instead, with application of the double jeopardy prohibition, holding that where a defendant first holds up one cashier in an establishment at gunpoint and then goes over to another cashier and does the same, he may be charged with two counts of armed robbery rather than only one.
The prosecutor, however, cites this Court’s decision in People v Vargo for the proposition that Wakeford did away with Robinson. While Vargo may have suggested, perhaps too quickly, that Wakeford did away with the "same transaction” test, this is clearly not the case. Instead, the Wakeford Court rejected any application of the test which would prevent a defendant from being charged with multiple counts of a felony he committed in a single crime spree. The question, the Court said, is not whether the defendant committed one single wrongful act, but rather whether the Legislature authorized multiple punishment under the circumstances. Indeed, the Wakeford Court approved of Johnson, relied on by the Robinson Court, and went on to say that "[t]he appropriate 'unit of prosecution’ for larceny is the taking at a single time and place without regard to the number of items taken.”
We also observe that Vargo’s primary reason for not applying Robinson was not Robinson’s alleged overruling by Wakeford, but rather the differing circumstances in Vargo and Robinson. The Vargo Court itself said that the differing facts were more important than Wakeford’s effect on Robinson. Specifically, Vargo concerned the violation of a different statute, to wit, one prohibiting welfare fraud. That statute does not require a renewed misrepresentation for each offense and Vargo himself had not made any new representations; he had simply failed to inform the Department of Social Services when his circumstances changed. The difference is that in Robinson the defendant had to make a new false statement every time she got her check, but Vargo did not.
There are cases in which aggregation of acts in a criminal prosecution has been allowed, but each of these cases has taken care to distinguish itself from Robinson. In People v Igaz, for example, the defendant was charged with unauthorized use of a telephone. The relevant statute, MCL 750.219a; MSA 28. 416(1), specifically looked to situations in which "the total value of telephone service obtained exceeds $100.” The Igaz Court pointed out that, unlike the false pretenses statute, the unau thorized use of telephone statute does not require continuous time sequence or single intent.
Similarly, the Court in People v Jones permitted the aggregation of two checks the defendant cashed with the same cashier within fifteen minutes of each other, where the cashier did not ask to see defendant’s identification on the second occasion because she had seen it fifteen minutes earlier. There, too, the Court made a point of distinguishing the facts before it from those in Robinson by saying that the "representations and actions of defendant in cashing the first $100 'check’, and reliance thereon by the cashier, were closely intertwined with the cashing of the second $100 'check’ .... The cashing of the two 'checks’ exhibited a continuous time sequence and intent.”
Here, the various undercover buys by the police took place, in some cases, months apart. Were the prosecutor to charge a defendant with two separate crimes for two transactions taking place in October and December, it would be ludicrous to say that the defendant would thereby be placed twice in jeopardy for the same offense. While we may sympathize with the prosecutor’s feeling that what defendants did was simply more serious than a number of petty misdemeanors, the question is not how serious the conduct was, but which part of the statute it violated. We agree with the courts below that different misrepresentations to different victims, made at different times, constitute different offenses even if they occur at the same place and pursuant to one overall "scheme.”
The prosecutor says that defendants have placed themselves in a highly regulated area and should, therefore, be subject to a myriad of restrictions designed to protect the public from various kinds of fraud. The prosecutor cites mainly the Weights and Measures Act. The prosecutor may be correct, but that does not change the wording of the false pretenses statute. If other statutes are to protect the public from defendants, then those other statutes should be the basis for the prosecution.
Affirmed.
97 Mich App 542, 550-552; 296 NW2d 99 (1980).
Id. at 551.
Id. at 551-552.
81 Mich 573, 576; 45 NW 1119 (1890).
Id.
418 Mich 95; 341 NW2d 68 (1983).
139 Mich App 573; 362 NW2d 840 (1984).
Wakeford, supra at 104-105, n 7, also at 113.
Id. at 111.
Id. at 112.
MCL 400.60(2); MSA 16.460(2).
119 Mich App 172, 180-181; 326 NW2d 420 (1982), vacated on other grounds 418 Mich 893 (1983).
Id. at 180, quoting MCL 750.219a; MSA 28.416(1).
126 Mich App 191, 198; 336 NW2d 889 (1983).
Id. at 198.
MCL 290.601 et seq.; MSA 12.1081(1) et seq.
We note, in particular, that had these events occurred after September 15, 1986, defendants might well be guilty of felonies under §31(3) of the Weights and Measures Act, MCL.290. 631(3);- MSA 12, 1081(31)(3), as amended by 1986 PA 194, § 1. | [
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Per Curiam.
This case, arising from a water-skiing accident in August, 1978, resulted in a $90,000 jury verdict in Wayne Circuit Court in favor of the plaintiffs. Both defendants appeal as of right. We affirm.
Plaintiff Thomas Holdsworth was skiing with his wife and others using the boat of Dennis Elliott. On the date of the injury, after driving around the lake a few times, plaintiff Thomas Holdsworth was elected to be the first skier. He adjusted his skis when he put them on. The skis had been manufactured by defendant Nash Manufacturing, Inc., and were purchased from defendant Dehner’s Sport Center, Inc., by Elliott in July, 1978. According to the testimony of Thomas Holdsworth, he jumped into the water, put on the skis and began skiing around the lake. The binding on the right ski got tighter about halfway around the lake. Holdsworth let go of the rope and went into a controlled fall. He adjusted the heel binding on the right ski, and proceeded to ski around the lake two or three more times. On the last run he was skiing outside the wake on the right side of the boat. He was ready to go into a turn when he noticed that the right slalom ski was bearing right. He began to fall as he crossed the wake. The left ski popped off, but the tip of the right ski dug underneath the water and twisted behind him. The right ski never released. Holdsworth testified that he knew immediately that his leg had been broken. The muscles in the right leg had been twisted so that those normally in the back of the leg were now to the right and the right foot was twisted so that the toes faced backward. He was taken to the hospital and put into traction. An examination showed that there was a spiral fracture of the femur. He was in the hospital for almost six weeks and in a hip-to-ankle cast from October, 1978, to April, 1979. As Thomas Holdsworth was unable to care for himself, his wife left her job to stay at home to care for him. At trial in June, 1984, he testified that he still suffered pain from the injury and had developed hip, knee and back problems as á result of a ¾" shortening of the right leg.
The primary issue in this case arises from the testimony of Donald Van Kirk, who testified as to his qualifications in biomechanical engineering and accident reconstruction. In reconstructing the accident, Van Kirk relied on the depositions of Thomas and Debra Holdsworth, Daniel Veevers, who was also skiing with the plaintiffs, Elliott and the president and two vice-presidents of defendant Nash. He also examined the hospital and medical records of Thomas Holdsworth, and examined the skis involved. Van Kirk described how he measured and analyzed the skis. After plaintiffs’ counsel had established a foundation for his testimony, the court ruled that Van Kirk could testify as to accident reconstruction, the quality control and manufacturing of the skis, and as a biomechanical engineer, but not as a water ski designer.
From his examination of the heel plate on the right ski, Van Kirk gave an opinion that the serrated portions of the plate were wider at the bottom than at the top. He stated that the skis should be designed to release during a fall to lessen the risk of injury to the skier. Van Kirk also stated that defendant Nash used only cosmetic quality-control procedures. There were no manufacturing specifications or tolerance levels in the manufacturing of the skis and particularly in regard to the heel plates. Van Kirk noted that the poor quality control and manufacturing system allowed the heel plate to move when it should not have. The heel plate should have locked in place when it was on the skier’s foot; however, the heel plate could be situated on one side with the other almost coming out of the serrations, thus any vibration could cause the spring to relax or pull in resulting in a loosening or tightening of the binding. In Van Kirk’s opinion, a prudent manufacturer would have taken steps to eliminate the quality control and testing defects in order to protect the ultimate consumer.
Defendants presented one witness who worked in marketing for another water ski manufacturing company. The witness was not trained in biome-chanical analysis or accident reconstruction. He indicated that his company did not compete with defendant Nash because Nash manufactured a low-cost ski unlike his company which manufactured a high-quality ski. His opinion was that the boat’s chop or a wave hit Thomas Holdsworth’s right ski causing it to spin back toward Holds-worth and causing Holdsworth to fall with great ferocity.
At the conclusion of trial, the jury returned a verdict in favor of plaintiffs in the amount of $90,000.
Many months later, defendants filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial. Defendants claimed that the plaintiffs had failed to present a prima facie case and that the pretrial motion judge had erred by not allowing defendants to add a biome-chanical expert to their witness list. The trial judge denied the motion, finding "sufficient testimony to have the jury, as trier of the facts, make a determination of the facts in this case from the hypothetical questions put to the expert that were based on the testimony of the other witnesses which lead [sic] the expert to render his expert opinion as to the reasons he felt were the causes of the accident.”
The first assignment of error that defendants make on appeal continues that made in the trial court under Wayne Circuit Court Local Rule 2.301 (rescinded effective March 1, 1986) which required the parties on or before eighteen months after the filing of the case to exchange lists of all witnesses to be called at trial, including experts. Defendants complain that they filed their witness list in a timely fashion, but that plaintiffs failed to file until much later. Plaintiffs, who filed their witness list eighty-seven days past the eighteen-month deadline, admitted late filing. However, defendants’ objection to the late filing, coming six months later, was far from timely itself. Plaintiffs’ witness list was filed over a year before trial and defendants were able to take the depositions of all the witnesses they wished. Defendants were not surprised by the testimony of Donald Van Kirk, and failed to show how they were prejudiced by the plaintiffs’ late filing. Defendants do claim prejudice in that they were not permitted to add a biomechanical expert to their witness list, their motion being denied by the pretrial motion judge, but their motion did not come until two months before the original trial date. We cannot find error when trial was rapidly approaching and it would have meant a delay of trial if the judge hearing defendants’ motion had permitted the late action.
Again, as with the motion question, defendants renew an objection made in their motion for judgment notwithstanding the verdict or new trial that the plaintiffs failed to show a prima facie case by failing to present evidence of design alternatives for the water ski and the binding or of the magni tude of risk involved in using the ski. Defendants seem to base their entire argument on a statement from Owens v Allis-Chalmers Corp, 414 Mich 413, 432; 326 NW2d 372 (1982):
In the entirety of plaintiff’s proofs, there is no data or other factual evidence concerning the magnitude of the risks involved, the utility or relative safety of the proposed alternatives, or evidence otherwise concerning the "unreasonableness” of risks arising from failure to install driver restraints on the subject forklift model as standard equipment.
Plaintiffs counter that, because they were alleging a manufacturing defect and not a design defect, they did not have to show design alternatives or the magnitude of risk involved in using the skis. We are directed by plaintiffs to Prentis v Yale Mfg Co, 421 Mich 670, 683-684; 365 NW2d 176 (1984), in which the Supreme Court said:
As a term of art, "defective” gives little difficulty when something goes wrong in the manufacturing process and the product is not in its intended condition. In the case of a "manufacturing defect,” the product may be evaluated against the manufacturer’s own production standards, as manifested by that manufacturer’s other like products.
However, injuries caused by the condition of a product may also be actionable if the product’s design, which is the result of intentional design decisions of the manufacturer, is not sufficiently safe. Conscious design defect cases provide no such simple test. The very question whether a defect in fact exists is central to a court’s inquiry. It is only in design defect cases that a court is called upon to supply the standard for defectiveness.
We note that SJI2d 25.31, labelled "Negligent Design and/or Manufacture-Definition,” refers to the Owens case. The civil injury instruction committee in SJI2d 25.32 amended the burden of proof instruction in October of 1984 to allow a judge to instruct on burden of proof as to manufacture or design, taking into account the language of Owens. The Prentis decision, handed down in December, 1984, is consistent with the delineation between manufacture and design as contained in the burden of proof instruction on product liability. As noted in Piercefield v Remington Arms Co, Inc, 375 Mich 85, 98-99; 133 NW2d 129 (1965):
As made clear above, a plaintiff relying upon the rule must prove a defect attributable to the manufacturer and causal connection between that defect and the injury or damage of which he complains. When able to do that, then and only then may he recover against the manufacturer of the defective product.
The Pierceñeld case involved the filing of a claim in the alternative as to negligence and breach of implied warranty. It notes that an implied warranty is breached when the product is transferred from the manufacturer’s possession while in a defective state, failing either to be reasonably fit for the particular purpose intended or to be of merchantable quality.
We find that the plaintiffs proceeded on a theory that defendants’ negligent manufacture and testing of the water skis caused Thomas Holdsworth’s injury. The trial court correctly instructed the jury consistent with that theory. We are satisfied that no error occurred.
The next challenge that defendants make to the proofs in the case involves the testimony by plaintiffs’ expert. Defendants claim that plaintiffs’ expert utilized a four-tier inference pyramid as the factual basis for his opinion on causation. Defen dants say that plaintiffs’ expert improperly reached his conclusion as to causation by relying on the following points:
(A). That there would have to be some exterior force applied to the ski.
(B). The heel portion of the same ski moves as a result of the applica— [sic] of the exterior force.
(C). The moving heel portion travels forward trapping the foot.
(D). A second set of exterior or outside forces are applied to the ski causing injury to the trapped foot.
The inference pyramid argued by defendants is taken from testimony during defense counsel’s cross-examination of the biomechanical expert. Defendants argue that the expert’s conclusions were not sufficiently grounded in fact to rise to the level of inferences. Thus, defendants say that each level of the pyramid is improperly supported by only inferences upon inferences.
Plaintiffs, in response, say that the "inference pyramid” that defendants rely on is not accurate, pointing to the following evidence:
(1) Plaintiffs testified that Thomas Holdsworth was injured while water-skiing. Van Kirk deduced that vibration, inherent in skiing through water, was applied to the ski.
(2) Van Kirk’s testimony regarding the movement of the heel binding was based on his own inspection of the ski, which revealed that the binding tracks were not parallel, and on the testimony of other witnesses.
(3) That Thomas Holdsworth’s foot was trapped in the binding at the time of the fall was demonstrated by the fact that the ski did not come off after the fall.
(4) Thomas Holdsworth testified that the right ski tipped under the water, precipitating his fall. This water over the ski tip, which pulled the ski down and behind Thomas Holdsworth, was the second exterior force applied to the ski.
In Caldwell v Fox, 394 Mich 401, 410; 231 NW2d 46 (1975), the Supreme Court stated: "It is within the province of the jury to infer the existence of a defective condition from circumstantial evidence alone; there is no requirement that the actual defect need be proven.” Defendants’ claim that Van Kirk’s opinions were simply inferences on top of inferences is contradicted by the detailed testimony given regarding the expert’s analysis and reconstruction of the accident. Defendants have not shown grounds for reversal.
The last issue raised by the defendants relates to the trial court’s preventing of defendants’ expert from testifying on the foreseeability of the risk of breaking a femur while water-skiing. Defendants had wanted the court to permit their expert to testify about the one instance in his experience in which a person broke a femur while water-skiing. A decision whether to admit evidence rests initially within the discretion of the trial court and that decision will not be set aside absent an abuse of discretion. Hadley v Trio Tool Co, 143 Mich App 319; 372 NW2d 537 (1985). Though defendants’ expert witness testified that he had had thirty years of water-skiing experience, defendants attempt to elevate that personal experience to a point of showing that such injuries are not reasonably foreseeable by manufacturers. We find no abuse in the trial court’s ruling that the witness’ knowledge regarding the circumstances of a separate accident is irrelevant to the fact at issue in the case.
We believe that Prentis, supra, supports the proposition that it is the risk of injury and not a particular injury which the law requires a manufacturer to foresee. Both plaintiffs’ and defendants’ experts testified that the foreseeable risk of injury to a skier increases when the binding does not release during a fall. We do not find an abuse of discretion relative to the trial court’s ruling relating to the personal experience of defendants’ expert witness.
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Cooley, C. J.
Action of trespass for tearing down a fence which had been built by the plaintiff as the division fence between lands occupied by himself and an adjoining lot. The defense was that the fence was upon land belonging to the defendants, and that it was lawfully torn down by them in their own right.
The chief contention on the trial concerned the proper location and boundaries of the plaintiff’s lands; the defendants claiming that an error had been committed by the plaintiff in locating his fences, whereby he had encroached fifty feet on lands belonging to Augustus E. Bissell, through whom the defendants claim. To show the error defendants put in evidence certain surveys which plaintiff claims were inconclusive for want of any identification of a proper starting point; and he asked of the court instructions to that effect. The criticism of the evidence seems to us to have much foundation; but as the judgment must be set aside on another ground, and any defects may possibly be supplied on another trial, we do not deem it important to consider the surveys particularly on this record.
The plaintiff claimed that if there was any original defect in his title, it had become complete as against Bissell and those claiming under him .by adverse possession; and he made what seemed - to be a very complete showing of open, notorious and peaceful possession of the land for more than twenty years before the trespass complained of, under claim of title. This branch of his case seems to have been made very complete, and it entitled him to a verdict unless the continuity of possession was broken by an occurrence of which the defendants gave evidence as having taken place in -or about the year 1872.
At that time Mr. Bissell, according to the testimony, after having asserted his right t.o, the land in dispute, in an interview with the plaintiff,'went upon the land with assistance, and tore down a fence built by the plaintiff where the fence more recently torn down was afterwards constructed. How long the fence remained down is not shown; but it seems to have been some days, and may have been for a considerable period. But it does not appear that Mr. Bissell took possession for a single day or hour except for the purposes of this act of destruction.
The circuit judge instructed the jury that if Bissell made to the plaintiff a 'claim of right to the premises, and went out to them and pulled down the fence in pursuance of this claim, such acts would break the continuity of the possession; that the possession must be continuous, and if thus broken, the plaintiff could claim nothing by adverse possession.
The judge was in error. The act proven by the defendants was a mere trespass upon the plaintiff’s possession and worked no disseizin. It might, perhaps, have constituted a sufficient entry at -the common law; but a mere entry is not sufficient in this State to stop the running of the statute of limitations, unless the party making it “ shall have continued in open and peaceable possession of the premises for at least one year next afteiy such entry, or unless an action shall be commenced upon such entry and seizin, within one year after he shall be ousted or dispossessed of the premises.” How. Stat. § 8705. Mr. Bissell did not bring himself within the terms of this statute.
The judgment must be reversed and a new trial ordered.
The other Justices concurred. | [
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