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Territory of Michigan, to wit—
To the Marshall of the territory of Michigan: You are hereby commanded that you take Denis Campeau, if to be found within Said territory, and him Safely Keep, So that you have his body before our judges of our Supreme Court, at Detroit, on the third monday in September next, then & there in our Said court to answer Thomas Emerson, Joseph Emerson & Stephen Mack, merchants in company at Detroit in Said territory, under the firm of Thomas Emerson & C° in a plea of trespass why with force & arms one certain brick kiln containing one hundred & fifty thousand burnt bricks of the value of one thousand dollars, the property of the Said Thomas Emerson & C° he took, threw down, destroyed & carried away, and to his own use converted against the peace of the United States, and of this territory and to the great damage of the Said Thomas Emerson & C° as they Say, two thousand dollars, which Shall then & there be made to appear, and of this writ make due return. Witness Augustus B. Woodward, Presiding judge of our Said Supreme Court the tenth day of October one thousand eight hundred ten. Peter Audrain elk. S. C. T. M. | [
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Know all men by these presents that I William B. Torrence, of the district of Detroit, and I James Henry, of the Same place, are held & firmly bound to John Watson In the Sum of one hundred dollars to be paid to the Said John Watson, his executors & administors to which payment well and truly to be made we bind ourselves, our heirs, executors & administrators firmly by these presents Sealed with our Seals, dated at Detroit the Seventeenth day of September one thousand eight hundred eight.
The Condition of this obligation is Such that if the above bunden William B. Torrence Shall prosecute to effect his appeal from the Judgment of the
district court, in the action of John Watson against him and Shall abide the Judgment of the Supreme Court, then this obligation to be void otherwise to be & remain in full force & virtue. WM B.. Torrence
In presence of Jas Henry
David Cooper
We of the jury find for the defendants; and we certify that the plaintiffs are indebted to the defendants beyond and above the debt demanded the sum of one thousand seven hundred nineteen dollars, forty cents.
George Meldrum fore Man
Plea
filed in Court
Peter Audrain elk
[Case 108, Paper 1]
And the Said John & Joseph by Harris H. Hickman, their attorney, come and defend the wrong & injury when &c and for plea Say that the Said Richard his action thereof against them ought not to have or maintain, because they Say that true it is they did execute the writing obligatory in the declaration alledged in manner & form as the plaintiff against them has declared, but they Say that they have paid the Same to the Said Richard before the instituting of the action thereof against them, to wit, at Detroit, in the district of Huron and Detroit, and this they are ready to verify, as the Court Shall direct, whereof they pray judgment if the plaintiff his action thereof against them ought to have & maintain.
Hickman atty for Defend111
And the Said Richard by E. Brush his atty Saith that by any thing &c he ought not &c because he Saith that the Said John & Joseph have not paid &c in manner & form as they in pleading have alledged and this he prays may be enquired of by the Country, and the Said John & Joseph by Harris H. Hickman, his atty likewise
Pattinson vs Jas Dodemead—
Motion for new trial—on the ground of verdict being contrary to Evidence—
Mr Brush objects to N. Trial on three grounds—
1. That this is a hard case—
2d That the verdict is according to the equity of the case—
3. That no new trial can be granted, in the present case as thereby a new trial must be granted in toto on both issues. The latter is conceded and admitted to be right and therefore cannot be set aside—
In answer to the first objection (Here state the facts of the transaction, comment on the Terms [?] of credit &c)
In answer to the second obj ection that the verdict is according to the equity of the case &c 3 Burrows 1794, much relied on by Mr Brush in support of his position—But conceived to be much in favor of the DeP J. Dodemead By this authority it is strongly intimated to be a duty of a court to protect the rights of infants
It is therefore fully established that an infant is not bound or compellable by law to do an act, unless the performing thereof is for his benifit—Was the giving of the Bond in question for the Benifit of the Infant ?—
3d Point, that the court cannot grant a new trial &c X- Because there was evidence before the Jury, both for and against the issue of infancy-—That the evidence [jurors] are sole & exclusive judges of the fact and evidence &c
2 Strange 1105 cited by Mr B. Mr Brush this case refers to Ashly vs Ashly pa. 1142 & Smith vs Huggins Idem where same doctrine is held but denied in note to sd case—
This doctrine has been since overruled—See 3d Wilson 38 Norris vs Freeman—Bac. 5. 247
I therefore consider the law now settled, that the court may grant a new trial altho evidence was given at the trial on Both sides—
The 2d Exception, under this last point—That no new trial can be granted in the present instance as thereby a verdict acknowledged right & according to evidence must be set aside &c
Mr Brush in support of this point cites 2d Strange 813 & 814 — Bui. 326 Bac 5. 242 (23)
“ 246 — does not apply
Comyn 5 491
3d Wilson 45
2 Salkeld 654
The doctrine laid down 3d Wil. 45 that the court will not grant a new trial, where there has been a contrariety of Evidence, explained & over ruled as applying to the case in hand by the decission of Norris vs Freeman. 3d Wilson 38—
Court will grant new trial after trial at bar Bac. 5. 243.
Mr Brush
New Case Cited 4 Term 468 5 Com 496
3 Wilson 45—The circumstances of Case are material to show the decision of the Court as the evidence was of the nature for the jury to judge upon— depending on the Opinion of Witnesses
Pattinson vs Dodemead
[In the handwriting of Peter Audrain]
[In the handwriting of Augustus B. Woodward]
[In the handwriting of Peter Audrain]
[In the handwriting of Solomon Sibley]
[Sibley Papers, Vol. 26A (935), mss. 67, Burton Historical Collection, Public Library, Detroit] | [
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Evidence of Capf Henry Brovoorts—
The Deponent being Sworn, Says that he was at the Island of Michk when the goods were Seized, that the wind was fair to make the traverse from Michk to Outardes island, and not too Violent in his opinion to endanger the Safety of the boats. The place where they landed was not the usual place, about half a mile Short of it; it was a very Rockey place, much more So than the usual place. It is very customary for boats to use the usual landing, the harbor is most Secure but it was half a mile out of their direct Course; there was a Swell on the lake occasioned the wind of the preceeding day, but in the opinion of the Deponent not dangerous; they were navigating Schenectady boats—which in the Opinion of the Deponent are better calculated to Stand the Swell than the Common Canadian boats; the Swell was Such as to increase upon them in making the traverse the further they went from the harbour
In the Opinion of the Deponent the Swell was Such as not to endanger the Safety of the boats.
on the 2jtil September
Question by E. Brush.—was there an old Swell on the lake ?
Answer—there was an old Swell occasioned by the wind of the precedent day which was Subsiding fast.
question by Mr Brush—how high was the Swell ? answer—the Swell was about one foot high.
question by Mr Sibley, whether the further the boat went the Swell would have been higher?
Answer—the wind that then blew would have Subsided the old Swell, and increased the new Swell.
Question by E. Brush.— is it your opinion that the Swell would have been more than one foot high over any part of the traverse
Answer—No.
Quest by E. Brush—have you ever seen the time when there was no Swell on the lake?
Answer. I never crossed it without experiencing a Swell in the Calmest weather.
Quest, by S. Sibley—Since, you have been commanding a vessell have you ever landed a cargo or any part of a Cargo on the british Shore ?
Answer—when I went up last May I landed part of my cargo on board the Tracy, in the channel and the other part on the Starboard Side or the right hand Side of the Channell going up.
Quest, by S. Sibley, did you ever report that fact to any Custom house in Canada, or did you Conceive it necessary?
Answer—I never reported to any Custom house in Canada I was bound to an american port, and no british port lying in the way; I reported to a Custom house in the United States, a part, to wit one bag of flour, remains Still on the Starboard Shore I should conceive it unnecessary for me to go to S1 Joseph, if there was a port there, or to return back to Sandwich; because I did not conceive the Starboard Shore to be british shore as the Channel formerly was Several miles on the Star-bord of that.
Quest, by S. Sibley, did you land the Goods before you entered into the river S* Clair, or after?
Answer—I sent them all on Shore in boats before I entered river Sc and a part were landed on the right hand shore
Treasury Department
April 9th, 1807
Sir
I enclose the copy of a letter from the Comptroller, by which you will perceive that an appeal from the judgment of the Court of Michigan in the case of the U. States vs the North West Company is not thought to be advisable. The goods should therefore be restored.
I am respectfully
Sir
Your obed* Serv*
Albert Gallatin
George Hoffman Esqe
Collector
Michillimackinac
Treasury Department
Comptrollers Office
April 7th 1807
Sir,
The Attorney General of the United States has had under consideration the record of the judgment of the Supreme Court of the territory of Michigan in the case of the libel, The United States against sundry goods, wares & merchandizes, the property of the Northwest Company, and this morning, he verbally communicated his opinion that the decision of the Court, of the principal question in the libel, that the seizure was premature, is correct; and that therefore an appeal is not advisable. — He added that whenever the incidental points on which the Court gave an opinion, shall hereafter arise, it may then be proper to appeal, in order that the law, as it respects them may be settled.
This appears to me, to be the proper course to be pursued.
I have the honor to be &c..
(Signed) G. Duvall.
Albert Gallatin Esqr
(In the handwriting of Peter Audrain]
[Sibley Papers, Vol. 24 (932), mss. Burton Historical Collection, Public Library, Detroit
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Territory of Michigan—to wit—in the supreme court
Robert Ballentine vs Robt Forsyth & Wm Smith
In case damages $400-0
The United States to the Marshall of the territory of Michigan: You are hereby commanded that you notify & Summons Robert Forsyth & William Smith, the defendants in the above action, their agent or attorney to be and appear in our Supreme Court of the territory of Michigan to be holden at Detroit on the third monday in September next to make answer to the plaintiff in Said action, according to law; the Same having been transferred & brought in our Said court by the plaintiff from the late court of the district of Huron & Detroit, under a law of Said territory; and of this precept make due return into our Said Supreme Court on the Said third monday in September next. Witness Augustus B. Woodward, one of the judges of our Said Supreme Court this eighth day of august one thousand eight hundred eleven.
Peter Audrain elk. S.C.T.M. | [
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Per Curiam.
This case involves a carjacking from a driver-victim who may have illegally come into possession of the vehicle. The trial court foreclosed defendant from presenting evidence at trial that might have shown the victim was not in lawful possession of the vehicle on the ground that such evidence was irrelevant.
Following a bench trial, defendant was convicted of carjacking, MCL 750.529a, and assault with intent to commit murder, MCL 750.83, and was sentenced to concurrent prison terms of seven to fifteen years for each conviction. The Court of Appeals affirmed.
Defendant has filed an application for leave to appeal, arguing, among other things, that his carjacking conviction is invalid because the prosecution did not prove that the driver of the vehicle was in lawful possession of the vehicle. We affirm the judgment of the Court of Appeals and reject defendant’s claim that an element of the crime of carjacking required the driver to be in lawful possession of the vehicle in the context of this case.
i
Timothy Tyson testified that he knew defendant as a relative of his neighbors in Mississippi. Tyson said he agreed to drive defendant to Michigan from Mississippi. After arriving in Michigan, Tyson and defendant made several stops. At one point, Tyson pulled over so defendant could speak with Willie McCall. Defendant and McCall spoke to each other on the sidewalk while Tyson waited in the vehicle. Defen dant and McCall got into the vehicle, asking Tyson to take McCall to a relative’s house. While Tyson was driving, McCall grabbed him from behind and defendant reached across from the passenger’s seat and stabbed him in the chest. Defendant said he was taking the vehicle, grabbed the wheel, and turned into an alley. Eventually defendant pushed Tyson out of the vehicle. Tyson reported the incident to the police, and defendant and McCall were arrested.
When defense counsel began asking Tyson about the ownership of the vehicle, the trial court sustained a prosecution objection. In refusing to allow defendant to present evidence regarding the propriety of Tyson’s possession of the vehicle, the court said:
The first thing they teach you in criminal law is that the title of a thief is good against the whole world, except the true owner. As long as he had custody of that car, no one had a right to use any force to get it from him.
n
Determining the scope of a criminal statute is a matter of statutory interpretation, subject to review de novo. People v Stone, 463 Mich 558, 561; 621 NW2d 702 (2001). The trial court’s decision regarding the admission of evidence is reviewed for an abuse of discretion. People v Layher, 464 Mich 756, 761; 631 NW2d 281 (2001). However, where the decision regarding the admissibility of evidence involves a preliminary question of law, that question is reviewed de novo on appeal. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).
m
Defendant claims that he was denied his right to present a defense and to confront witnesses because the trial court precluded him from questioning the victim with regard to whether he was in lawful possession of the motor vehicle.
It is generally understood that one need not rob the actual owner of property in order to be lawfully charged and convicted of armed robbery because it is sufficient if the victim has an interest in the property superior to that of the defendant. People v Rodgers, 248 Mich App 702, 710-711; 645 NW2d 294 (2001).
The case at bar presents the related question whether a stolen vehicle may be the subject of a carjacking.
The carjacking statute, MCL 750.529a(l), provides:
A person who by force or violence, or by threat of force or violence, or by putting in fear robs, steals, or takes a motor vehicle as defined in [MCL 750.412] from another person, in the presence of that person or the presence of a passenger or in the presence of any other person in lawful possession of the motor vehicle, is guilty of carjacking, a felony punishable by imprisonment for life or for any term of years. [Emphasis added.]
We begin by noting that the prosecutor’s theory in this case was based on a taking “from another person, in the presence of that person.”
Defendant contends that the “in the presence” part of the statute means that the person from whom the car is stolen must have had lawful possession of the vehicle. In contrast, the prosecution contends that the “lawful possession” portion of the statute refers only to takings “in the presence of any other person.”
We agree with the trial court, the Court of Appeals, and the prosecution that “in lawful possession” only applies to the words “in the presence of any other person” in the carjacking statute. We note that this construction is consistent with the common grammatical rule of construction that a modifying clause will be construed to modify only the last antecedent unless some language in the statute requires a different interpretation. Stanton v Battle Creek, 466 Mich 611, 616; 647 NW2d 508 (2002). Under this rule of construction, the phrase “in lawful possession” only modifies the phrase “in the presence of any other person.” It does not modify the preceding phrases “in the presence of that person” or “in the presence of a passenger.”
Having concluded that a driver need not be in lawful possession of a vehicle in order to have the vehicle carjacked, we conclude that the trial court did not err in precluding defendant from eliciting testimony that the driver may not have been in lawful possession of the vehicle because whether the driver was in lawful possession of the vehicle simply was not relevant to whether defendant is guilty of carjacking.
Logical relevance is the foundation for admissibility of evidence. People v VanderVliet, 444 Mich 52, 60; 508 NW2d 114 (1993). MRE 402 provides:
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Michigan, these rules, or other rules adopted by the Supreme Court. Evidence which is not relevant is not admissible.
As defined by MRE 401, “relevant evidence” is evidence that has
any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
We also note that MCL 768.29 similarly provides:
It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence ... to relevant and material matters ....
Given our conclusion that the victim need not have been in lawful possession of the vehicle, any evidence that the driver was not in legal possession of the vehicle was not related to any fact of consequence relating to the carjacking charge. Accordingly, such evidence was not relevant, and thus inadmissible. Therefore, the trial court properly precluded defendant from presenting evidence that the driver may not have been in lawful possession of the vehicle.
We conclude that the Legislature did not intend to require legal possession as a prerequisite to all carjacking convictions. Because the prosecutor’s theory in this case was based on a taking “from another person, in the presence of that person,” MCL 750.529a(l), we reject defendant’s claim that the evidence was insufficient to support his carjacking conviction.
IV
We thus affirm defendant’s carjacking conviction and sentence. In all other respects we deny leave to appeal.
Corrigan, C.J., and Weaver, Kelly, Taylor, Young, and Markman, JJ., concurred.
Cavanagh, J., concurred in the result only.
Unpublished opinion per curiam, issued October 26, 2001 (Docket No. 224913).
McCall was also convicted of carjacking and assault with intent to murder at a separate trial. His case is not before us.
The Rodgers Court explained:
[T]he essence of armed robbery is not that the property belonged to the victim, but rather that it belonged to someone other than the thief. To constitute an armed robbery, the property must be taken by force or violence, “ ‘not necessarily from the owner, but from any person in possession thereof whose right of possession is superior to that of the robber.’ ” [Id. at 711-712 (citations omitted).]
Unless set off by commas, a modifying word or phrase, where no contrary intention appears, refers solely to the last antecedent. 2A Singer, Sutherland Statutory Construction (6th ed), § 47.33, p 369, 373. | [
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Markman, J.
We granted leave in this case to consider whether covenants permitting only residential uses, and expressly prohibiting commercial, industrial, or business uses, preclude the operation of a “family day care home.” We also granted leave to consider whether a covenant precluding such an operation is unenforceable as violative of Michigan “public policy.” The circuit court granted summary disposition in favor of defendants, holding that a covenant precluding the operation of a “family day care home” is contrary to the public policy of the state of Michigan. The Court of Appeals affirmed, but for a different reason. It held that the operation of a “family day care home” is not precluded by such covenants. It concluded that, because the operation of a “family day care home” is a residential use, it could not also be a commercial or business use because the two uses are mutually exclusive. 238 Mich App 412; 605 NW2d 681 (1999). We respectfully disagree with both lower courts. A covenant barring any commercial or business enterprises is broader in scope than a covenant permitting only residential uses. Furthermore, covenants such as these do not violate Michigan public policy and are enforceable. Accordingly, we reverse the decision of the Court of Appeals and remand this case to the circuit court for entry of an order granting summary disposition in favor of plaintiffs.
I. FACTS AND PROCEDURAL HISTORY
All parties in this case Own homes within the Spring Valley Estates subdivision in Fruitland Township. Defendants each operate licensed “family day care homes” pursuant to MCL 722.111 et seq. in their homes within the subdivision. The subdivision is subject to the following covenants:
1. No part of any of the premises above described may or shall be used for other than private residential purposes.
* * *
3. No lot shall be used except for residential purposes.
:]-. * *
14. No part or parcel of the above-described premises shall be used for any commercial, industrial, or business enterprises nor the storing of any equipment used in any commercial or industrial enterprise.
Plaintiffs sought an injunction prohibiting the continued operation of defendants’ “family day care homes.” The parties agreed to file cross-motions for summary disposition before engaging in discovery. Plaintiffs moved for partial summary disposition pursuant to MCR 2.116(C)(9), and defendants moved for summary disposition pursuant to MCR 2.116(C)(8) and (10). The circuit court denied plaintiffs’ motion and granted defendants’ motion, finding that a “covenant precluding the operation of a family day care home in a residential setting is contrary to the public policy of the State of Michigan.” The Court of Appeals affirmed this decision. However, instead of invalidating the covenants as being against public policy, the Court concluded that defendants’ operation of “family day care homes” did not violate the covenants. This Court granted plaintiffs’ application for leave to appeal.
II. STANDARD OF REVIEW
Because the parties have stipulated the essential facts, our concern here is only with the law: specifically, whether covenants permitting only residential uses, and expressly prohibiting commercial, industrial, or business uses, preclude the operation of a “family day care home,” and, if so, whether such a restriction is unenforceable as against “public policy.” These are questions of law that are reviewed de novo, Kelly v Builders Square, Inc, 465 Mich 29, 34; 632 NW2d 912 (2001), which standard is identical to the standard of review for grants or denials of summary disposition. MacDonald v PKT, Inc, 464 Mich 322, 332; 628 NW2d 33 (2001).
m. ANALYSIS
A. COVENANTS
We granted leave in this case to consider whether the operation of a “family day care home” violates covenants permitting only residential uses and prohibiting commercial, industrial, or business uses. Further, assuming arguendo that such activities do violate the covenant, the question becomes whether the covenant is unenforceable because it violates some “public policy” in favor of day care facilities. In Beverly Island Ass’n v Zinger, 113 Mich App 322; 317 NW2d 611 (1982), the Court of Appeals addressed a somewhat similar issue. There, the Court, faced with a narrower covenant that permitted only residential uses, concluded that the operation of a “family day care home” did not violate that covenant. Stressing the relatively small scale of the particular day care operation and that “[t]he only observable factor which would indicate to an observer that defendants do not simply have a large family is the vehicular traffic in the morning and afternoon when the children arrive and depart,” id. at 328, the Court found this sort of day care use to be residential in nature, and thus not a use in violation of the covenant.
Beverly Island was relied upon by the Court of Appeals in the instant matter to conclude that the day care use here was not violative of the covenants at issue. However, such reliance was misplaced, in our judgment, because, the covenant at issue in Beverly Island merely prohibited nonresidential uses, whereas the covenants at issue here prohibit not only nonresidential uses, but also any commercial, industrial, or business uses as well. There is a significant distinction between such restrictions, as more is prohibited in our case then was prohibited in Beverly Island. Not only did defendants in this case covenant not to use their property for nonresidential uses, but they also covenanted not to use their property for commercial, industrial, or business uses.
Interestingly, the Beverly Island Court itself recognized the distinction between a covenant permitting only residential uses and one that also expressly prohibits commercial, industrial, or business uses. Before it even began its analysis, the Beverly Island Court noted that the covenant at issue “permits residential uses rather than prohibiting business or commercial uses.” Id. at 326. It further recognized that a “restriction allowing residential uses permits a wider variety of uses than a restriction prohibiting commercial or business uses.” Id. While the former proscribes activities that are nonresidential in nature, the latter proscribes activities that, although perhaps residential in nature, are also commercial, industrial, or business in nature as well. The distinction between the covenants at issue here and the one at issue in Beverly Island was not viewed as persuasive by the Court of Appeals in this case.
The Court of Appeals in this case reasoned that, because the operation of a “family day care home” does not violate a covenant permitting only residential uses, the operation of a “family day care home” also does not violate a covenant prohibiting commercial, industrial, or business uses. We disagree with such reasoning. Because these are separate and distinct covenants, that an activity complies with one does not necessarily mean that the same activity complies with the other. In other words, an activity may be both residential in nature and commercial, industrial, or business in nature.
Therefore, Beverly Island simply does not answer the question raised here. We must determine whether the operation of a “family day care home” violates covenants prohibiting both nonresidentia! uses and commercial, industrial, or business uses. We find that it does.
The operation of a “family day care home” for profit is a commercial or business use of one’s property. We find this to be in accord with both the common and the legal meanings of the terms “commercial” and “business.” “Commercial” is commonly defined as “able or likely to yield a profit.” Random House Webster’s College Dictionary (1991). “Commercial use” is defined in legal parlance as “use in connection with or for furtherance of a profit-making enterprise.” Black’s Law Dictionary (6th ed). “Commercial activity” is defined in legal parlance as “any type of business or activity which is carried on for a profit.” Id. “Business” is commonly defined as “a person . . . engaged in ... a service.” Random House Webster’s College Dictionary (1991). “Business” is defined in legal parlance as an “[a]ctivity or enterprise for gain, benefit, advantage or livelihood.” Black’s Law Dictionary (6th ed).
This Court has previously discussed the meaning of “commercial” activity in a related context. In Lanski v Montealegre, 361 Mich 44; 104 NW2d 772 (1960), this Court addressed whether the operation of a nursing home was in violation of a reciprocal negative easement prohibiting commercial activity upon certain property. We determined that it was, observing that the circumstances were indicative of a “general plan for a private resort area” and that this suggested that a broad definition of “commercial” activity was intended. Id. at 49 (emphasis in the original). Therefore, “[i]n its broad sense commercial activity includes any type of business or activity which is carried on for a profit.” Id. We concluded that the operation of a nursing home was a commercial use because a fee was charged, a profit was made, the services were open to the public, and such an operation subtracted from the “general plan of the private, noncommercial resort area originally intended.” Id. at 50.
The facts here indicate that a similar definition of commercial activity was intended. Not only does the covenant here prohibit commercial or business activi ties, it also prohibits the mere “storing of any equipment” used in such activities. This is a strong and emphatic statement of the restrictions’ intent to prohibit any type of commercial or business use of the properties. Defendants here, through the operation of “family day care homes” are providing a service to the public in which they are making a profit. Clearly, such use of their properties is a commercial or business use, as those terms are commonly and legally understood.
It is of no moment that, as defendants assert, the “family day care homes” cause no more disruption than would a large family or that harm to the neighbors may not be tangible. As we noted in Austin v Van Horn, 245 Mich 344, 347; 222 NW 721 (1929), “the plaintiffs right to maintain the restrictions is not affected by the extent of the damages he might suffer for their violation.” This all comes down to the well-understood proposition that a breach of a covenant, no matter how minor and no matter how de minimis the damages, can be the subject of enforcement. As this Court said in Oosterhouse v Brummel, 343 Mich 283, 289; 72 NW2d 6 (1955), “ ‘If the construction of the instrument be clear and the breach clear, then it is not a question of damage, but the mere circumstance of the breach of the covenant affords sufficient ground for the Court to interfere by injunction.’ ” (Citations omitted.)
B. PUBLIC POLICY
Defendants further contend that, even if the covenant here does prohibit the operation of these day care facilities, such a restriction should be unenforceable as against “public policy.” The circuit court agreed, while the Court of Appeals did not find it necessary to reach this issue.
To determine whether the covenant at issue runs afoul of the public policy of the state, it is first necessary to discuss how a court ascertains the public policy of the state. In defining “public policy,” it is clear to us that this term must be more than a different nomenclature for describing the personal preferences of individual judges, for the proper exercise of the judicial power is to determine from objective legal sources what public policy is, and not to simply assert what such policy ought to be on the basis of the subjective views of individual judges. This is grounded in Chief Justice Marshall’s famous injunction to the bench in Marbury v Madison, 5 US (1 Cranch) 137, 177; 2 L Ed 60 (1803), that the duty of the judiciary is to assert what the law “is,” not what it “ought” to be.
In identifying the boundaries of public policy, we believe that the focus of the judiciary must ultimately be upon the policies that, in fact, have been adopted by the public through our various legal processes, and are reflected in our state and federal constitutions, our statutes, and the common law. See Twin City Pipe Line Co v Harding Glass Co, 283 US 353, 357; 51 S Ct 476; 75 L Ed 1112 (1931). The public policy of Michigan is not merely the equivalent of the personal preferences of a majority of this Court; rather, such a policy must ultimately be clearly rooted in the law. There is no other proper means of ascertaining what constitutes our public policy. As this Court has said previously:
“As a general rule, making social policy is a job for the Legislature, not the courts. This is especially true when the determination or resolution requires placing a premium on one societal interest at the expense of another: ‘The responsibility for drawing lines in a society as complex as ours— of identifying priorities, weighing the relevant considerations and choosing between competing alternatives — is the Legislature’s, not the judiciary’s.’ ” [Van v Zahorik, 460 Mich 320, 327; 597 NW2d 15 (1999) (citations omitted).]
Instructive to the inquiry regarding when courts should refrain from enforcing a covenant on the basis of public policy is W R Grace & Co v Local Union 759, 461 US 757, 766; 103 S Ct 2177; 76 L Ed 2d 298 (1983), in which the United States Supreme Court said that such a public policy must not only be “explicit,” but that it also “must be well defined and dominant. . . .” As the United States Supreme Court has further explained:
Public policy is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests. As the term “public policy” is vague, there must be found definite indications in the law of the sovereign to justify the invalidation of a contract as contrary to that policy. [Muschany v United States, 324 US 49, 66; 65 S Ct 442; 89 L Ed 744 (1945).
This Court has found no “definite indications in the law” of Michigan to justify the invalidation of a covenant precluding the operation of “family day care homes.” Indeed, nothing has been cited, nor does our research yield anything, in our constitutions, statutes, or common law that supports defendants’ view that a covenant prohibiting “family day care homes” is contrary to the public policy of Michigan.
Defendants contend that “family day care homes” are a “favored use” of property, and a restriction against such a use, therefore, violates public policy. Amoiphous as that claim may be, even if it is true that “family day care homes” may be permitted or even encouraged by law, it does not follow that such use is a favored one. Additionally, that “family day care homes” are permitted by law does not indicate that private covenants barring such business activity are contrary to public policy. What is missing from defendants’ argument is some “definitive indication” that to exclude “family day care homes” from an area by contract is incompatible with the law. There is a significant distinction between something being permitted or even encouraged by law and something being required or prohibited by law.
To fail to recognize this distinction would accord the judiciary the power to examine the wisdom of pri vate contracts in order to enforce only those contracts it deems prudent. However, it is not “the function of the courts to strike down private property agreements and to readjust those property rights in accordance with what seems reasonable upon a detached judicial view.” Oosterhouse, supra at 289-290. Rather, absent some specific basis for finding them unlawful, courts cannot disregard private contracts and covenants in order to advance a particular social good. See Johnstone v Detroit, G H & M R Co, 245 Mich 65, 73-74; 222 NW 325 (1928). As we said in Oosterhouse, supra at 288, “[w]e do not substitute our judgment for that of the parties, particularly where, as in the instant case, restrictive covenants are the means adopted by them to secure unto themselves the development of a uniform and desirable residential area.” Instead, we conclude that, if covenants that prohibit “family day care homes” should not be enforced on public policy grounds, such a decision should come from the Legislature, not the judiciary. The Legislature may think that it is wise to bar such covenants, but until it does so, we cannot say that they are contrary to public policy. See Muschany, supra at 65.
Further, although the circuit court and the Court of Appeals in this case considered what they viewed as the public policy in favor of “family day care homes,” they neglected to even mention the strong competing public policy, which is well-grounded in the common law of Michigan, supporting the right of property owners to create and enforce covenants affecting their own property. Wood v Blancke, 304 Mich 283, 287-288; 8 NW2d 67 (1943). It is a fundamental principle, both with regard to our citizens’ expectations and in our jurisprudence, that property holders are free to improve their property. We have said that property owners are free to attempt to enhance the value of their “property in any lawful way, by physical improvement, psychological inducement, contract, or otherwise.” Johnstone, supra at 74-75 (emphasis added). Covenants running with the land are legal instruments utilized to assist in that enhancement. A covenant is a contract created with the intention of enhancing the value of property, and, as such, it is a “valuable property right.” City of Livonia v Dep’t of Social Services, 423 Mich 466, 525; 378 NW2d 402 (1985). “The general rule [of contracts] is that competent persons shall have the utmost liberty of contracting and that their agreements voluntarily and fairly made shall be held valid and enforced in the courts.” Twin City, supra at 356; see also Port Huron Ed Ass’n v Port Huron Area School Dist, 452 Mich 309, 319; 550 NW2d 228 (1996), quoting Dep’t of Navy v Federal Labor Relations Auth, 295 US App DC 239, 248; 962 F2d 48 (1992) (discussing the “fundamental policy of freedom of contract” under which “parties are generally free to agree to whatever specific rules they like”).
Moreover, “[restrictions for residence purposes, if clearly established by proper instruments, are favored by definite public policy. The courts have long and vigorously enforced them by specific mandate.” Johnstone, supra at 74. The covenants at issue here are of this sort. They expressly prohibit nonresidential uses, as well as commercial, industrial, or business uses. Clearly, the intention was to limit the use of the property in order to maintain a residential neighborhood of a specific character. As we said in Signaigo v Begun, 234 Mich 246, 250; 207 NW 799 (1926), “[t]he right, if it has been acquired, to live in a district uninvaded by stores, garages, business and apartment houses is a valuable right.” Further, this Court “has not hesitated in proper cases to restrain by injunction the invasion of these valuable property rights.” Id. at 251. Moreover, the “nullification of [such] restrictions [would be] a great injustice to the owners of property,” Wood, supra at 287, because “the right of privacy for homes is a valuable right.” Johnstone, supra at 74. It is the function of the courts to protect such rights through the enforcement of covenants. Wood, supra at 287-288.
Here, we conclude that a covenant precluding the operation of a “family day care home” is not violative of the public policy of our state because there are no “definite indications” in our law of any public policy against such a covenant. Indeed, there is considerable public policy regarding the freedom of contract that affirmatively supports the enforcement of such a covenant.
IV. RESPONSE TO DISSENTS
A. JUSTICE KELLYS DISSENT
1. COVENANTS
Justice Kelly’s dissent first concludes that “family day care homes” are “residential in nature.” Post at 83. However, as we have already pointed out, the issue here is not whether the operation of a “family day care home” is a residential use. Rather, the issue is whether such an operation is a commercial or business use. As we explained above, residential and commercial or business uses of property are not mutually exclusive; an activity may be both residential in nature and commercial or business in nature. Therefore, the dissent’s assertion that “family day care homes” are residential in nature simply is irrelevant here, where the issue is whether the operation of a “family day care home” violates a covenant prohibiting commercial or business uses.
The dissent next concludes that “family day care homes” “do not violate restrictive covenants prohibiting commercial and business use.” Post at 83. Inherent in this conclusion is that the operation of a “family day care home” is not a commercial or business
use. As discussed above, we disagree. The dissent criticizes us for placing “great weight on compensation,” post at 84, in determining that the operation of a “family day care home” is a commercial or business use. However, it provides no explanation as to why this is an inappropriate consideration. In Lanski, supra at 49, in determining that the operation of a nursing home was a commercial use, this Court observed that “[a] fee is charged and a profit is made.” The same is true here. The intent to make a profit is quite obviously an important element in identifying what constitutes a commercial or business enterprise.
The dissent next asserts that “land use should be characterized according to how the activity involved there affects the general plan of the area” rather than “the narrow approach of the majority.” Post at 84, 85. However, the approach that this majority has adopted is simply that, when parties enter into contracts to prohibit commercial or business uses on their properties, commercial or business uses on their properties will be prohibited.
Further, lest the dissent obscure this issue, we point out once more that the covenant before this Court states that the parties’ properties are not to “be used for any commercial, or business enterprises.” It does not state, as the dissent would have us understand, that the parties’ properties are not to be used for any commercial, or business enterprises that affect the general plan of the area or has a visible adverse effect on the residential character of the neighborhood. See post at 84, 87. Under the plain language of the covenant before this Court, not the covenant apparently preferred by the dissent, the parties’ properties may not be used to operate a commercial or business enterprise. Period. In an effort apparently to “improve” upon the actual contract created by the parties, the dissent reads words into the covenant that simply are not there.
The dissent justifies its amending from the bench by asserting that “[t]he absence of a definition in the restrictive covenants” of the terms “commercial, industrial, or business enterprises” leaves these terms ambiguous, and thus “opens the terms to judicial interpretation.” Post at 87. We find this to be a remarkable proposition of law, namely, that the lack of an explicit internal definition of a term somehow equates to ambiguity — an ambiguity that apparently, in this case, allows a court free rein to conclude that a contract means whatever the court wants it to mean. Under the dissent’s approach, any word that is not specifically defined within a contract becomes magically ambiguous. If that were the test for determining whether a term is ambiguous, then virtually all contracts would be rife with ambiguity and, therefore, subject to what the dissent in “words mean whatever I say they mean” fashion describes as “judicial interpretation.” However, fortunately for the ability of millions of Michigan citizens to structure their own personal and business affairs, this is not the test. As this Court has repeatedly stated, the fact that a contract does not define a relevant term does not render the contract ambiguous. Henderson v State Farm Fire & Cas Co, 460 Mich 348, 354; 596 NW2d 190 (1999). Rather, if a term is not defined in a contract, we will interpret such term in accordance with its “commonly used meaning.” Id.] Frankenmuth Mut Ins Co v Masters, 460 Mich 105, 113-114; 595 NW2d 832 (1999).
The contract in this case clearly prohibits commercial or business uses on the covered properties. Equally clearly, the operation of a “family day care home” that makes a profit by providing a service to the public is a commercial or business use. That these interpretations should appear to the dissent to be overly “conclusory” is only, perhaps, because they involve such simple and unremarkable propositions of law.
2. PUBLIC POLICY
The dissent also concludes that, even if the covenant here does preclude the operation of “family day care homes,” such a preclusion is contrary to public policy, and thus unenforceable. Post at 88. As we have already made clear, we respectfully disagree.
The dissent suggests that we unnecessarily limit our understanding of public policy to “express statutory mandates.” Post at 90. However, as we have already explained, our view, as well as that of the United States Supreme Court, is simply that public policy must be derived from “definite indications” in the law. While the dissent would refuse to enforce the instant covenant absent any “definite indication” in the law, much less any “express statutory mandate,” that such a covenant contravenes any public policy, we view it as our obligation to enforce a covenant under these circumstances.
As the dissent itself acknowledges, public policy is the “foundation” of our constitutions, statutes, and common law. Post at 89. It is precisely because of this truth that a contract that does violate public policy is unenforceable. However, it is also because of this truth that, where an actual public policy exists, rather than simply a personal policy preference of a judge, “definite indications” of an actual public policy .will be found in our laws.
The dissent asserts that the majority’s opinion “eviscerates the public policy doctrine” and is “contrary to this Court’s long established practice.” Post at 83, 92. Once more, we disagree. This opinion merely sets forth the unexceptional proposition that an assertion of public policy as a basis for nullifying a contract must, in fact, be grounded in a public policy. If not grounded in the constitution, the statutes, or the common law of this state, we are curious as to the dissent’s basis for asserting that a policy is truly a “public” policy as opposed to merely a judge’s own preferred policy. It is hard to think of a proposition less compatible with the “rule of law” and more compatible with the “rule of men” than that a judge may concoct “public policies” from whole cloth, rather than from actual sources of the law.
Finally, the dissent concludes that “restrictive covenants prohibiting family day-care homes are contrary to our state’s public policy and are unenforceable.” Post at 90. However, the only evidence that the dissent points to establishes, at most, that “family day care homes” are supported, or even encouraged, by public policy, not that covenants which limit “family day care homes” upon private properties are contrary to public policy. Such evidence certainly does not provide any “definite indication” that a covenant, freely entered into by private parties, prohibiting the operation of “family day care homes” on their properties, violates public policy.
In summary, in the name of “public policy” — a “public policy” nowhere to be found in the actual laws of Michigan — the dissent would impose its own preferences for how a contract ought to read in place of the preferences of the parties themselves.
B. JUSTICE WEAVER’S DISSENT
Justice Weaver’s dissent sets forth two arguments that have not elsewhere been addressed in this opinion:
First, the dissent suggests that, in order to determine whether an activity is commercial or business in nature, this Court must inquire into the type of neighborhood to which the covenant applies. We do not understand the relevance of this inquiry. The covenant here prohibits commercial or business uses. This language could not be more direct or straightforward. We do not understand how, for example, a commercial dry cleaner is transformed from a “business” into a non-“business” because the surrounding neighborhood is middle-income or lower middle-income, because its lots are larger or smaller, because its residents are predominantly younger or older, or because its shrubbery is or is not well-tended. Rather, a business is a business, quite without reference to the type of neighborhood in which it is situated. If there is, in fact, some relevance to be derived from all these things that comprise a neighborhood in defining “business,” the dissent does not tell us what this might be. The dissent offers no factors or criteria for a court to evaluate, it offers no guidance as to the particular circumstances that should be reviewed by a court in its analysis, and it offers no direction regarding when a court should conclude that a 7-11 store, a beauty shop, or an auto body facility has been transformed into a non-“business” because of its location.
Indeed, the irrelevance of the dissent’s inquiry is underscored by the obvious fact that the covenant here was only applied specifically to a single “neighborhood” — what was within the scope of the covenant. There are not one hundred different neighborhoods here in which “business,” at least in the dissent’s view, might mean something different in each instance. Rather, there is a one neighborhood to which the covenant applies, and there is not the slightest indication in the covenant that this altogether ordinary term, “business,” was intended to mean anything other than what every person in Fruit-land Township, or anywhere else in the state of Michigan, would understand it to mean. One would suppose that, had the type of neighborhood been relevant to an understanding of “business,” the parties who joined into this covenant might have offered some guidance in this regard, since there is only one “type of neighborhood” to which such guidance would have been required. However, no evidence exists that these parties intended any of their words to have secret meanings, or to communicate something other than their ordinary meanings.
Further, we are not persuaded by the case cited by the dissent in support of its proposition that whether an activity constitutes a “business” depends on the type of neighborhood to which the covenant applies. The dissent cites Brown v Hojnacki, 270 Mich 557, 561; 259 NW 152 (1935), in which this Court concluded that it was “too plain for argument” that the activity at issue there, a massage parlor, constituted a “business house of any kind,” and thereby violated a covenant prohibiting the latter. In reaching this con elusion, the Court nonetheless asserted that it was appropriate to consider the “ location and character of the entire tract of land.’ ” Id. at 560-561. In light of the fact that the Court did not actually rely upon any such factor in its opinion, this statement must be viewed as dictum — dictum that apparently has not been reasserted since in this Court.
Second, the dissent contends that our opinion will “prohibit a stockbroker from working from home on his computer, an author from writing at his home office, an attorney from writing on billable time at home, or even a neighborhood child from mowing his family’s and neighbors’ lawns for pay.” Post at 94. Needless to say, we have not been presented with any of these cases, and will await their appeals before deciding them. However, where agreements that have been freely reached prove flawed, they can be undone or modified through the same process. Regardless of whether this Court can “improve upon” such agreements, we are unprepared to do so by construing words to mean what they plainly do not mean.
The essential issue in this case is simply this: “Is a for-profit day-care center a ‘business?’ ” In our judgment, it is. In our judgment, the parties to the contract in' this case intended that “business” would mean “business.” The approach of the dissent would undermine the stability of property law as well as contract law in Michigan by construing the words of a real estate contract to mean something other than what they clearly mean.
V. CONCLUSION
We conclude that the operation of a “family day care home” violates a covenant prohibiting commercial or business uses, and that such a covenant is enforceable. Accordingly, we reverse the decision of the Court of Appeals and remand to the circuit court for entry of an order granting summary disposition in favor of plaintiffs.
Corrigan, C.J., and Taylor and Young, JJ., concurred with Markman, J.
In the circuit court, the parties stipulated the essential facts. It is also undisputed that defendants ran thé “family day care homes” for profit.
“Family day care home” means a “private home in which 1 but fewer than 7 minor children are received for care and supervision for periods of less than 24 hours a day . . . .” [MCL 722.111(f)(iii).]
3 These covenants are in the form of plat restrictions that attached to the parties’ property by operation of the doctrine of reciprocal negative easement.
The covenant at issue in Beverly Island, supra at 324, provided in relevant part that “[n]o lot or building plot shall be used except for residential purposes.”
The Court referenced the statement made by the Beverly Island Court that recognized the difference between such covenants, but stated that this statement was “mere dicta,” and thus refused to follow it. 238 Mich App 416-417.
The only issue raised by this case is whether the operation of a “family day care home” violates covenants permitting only residential uses and prohibiting commercial, industrial, or business uses. Accordingly, that is the only issue we address. In particular, we do not address whether the operation of a “family day care home” violates the single covenant permitting only residential uses, i.e., the issue addressed by the Court of Appeals in Beverly Island.
We note that the operation of a “family day care home” requires a license and is regulated by the state.
The Court of Appeals indicated that Michigan public policy does, in fact, favor “family day care homes.” It then concluded that, in light of this public policy, as well as the fact that the operation of a “family day care home” is residential in nature, defendants’ property use did not violate the covenants. However, rather than relying on public policy to conclude that a covenant prohibiting the operation of a “family day care home” was unenforceable, as the circuit court did, the Court of Appeals relied on public policy to conclude that the covenants here did not prohibit the operation of a “family day care home.”
Covenants that are against “public policy” are unenforceable. “The principle that contracts in contravention of public policy are not enforceable should be applied with caution and only in cases plainly within the reasons on which that doctrine rests.” Twin City Pipe Line Co v Harding Glass Co, 283 US 353, 356-357; 51 S Ct 476; 75 L Ed 1112 (1931); Skutt v Grand Rapids, 275 Mich 258, 264; 266 NW 344 (1936).
For instance, a racial covenant would be clearly unenforceable on this basis. See Shelley v Kraemer, 334 US 1; 68 S Ct 836; 92 L Ed 1161 (1948) (interpreting the Equal Protection Clause, US Const, Am XIV); Hurd v Hodge, 334 US 24; 68 S Ct 847; 92 L Ed 1187 (1948) (interpreting the Civil Rights Act of 1866); the federal Fair Housing Act, 42 USC 3601 et seq.; Michigan’s Civil Rights Act, MCL 37.2101 et seq.; and the housing provisions of Michigan’s Civil Rights Act, MCL 37.2501 et seq.
We note that, besides constitutions, statutes, and the common law, administrative rules and regulations, and public rules of professional conduct may also constitute definitive indicators of public policy.
In Eastern Associated Coal Corp v United Mine Workers of America, Dist 17, 531 US 57, 68; 121 S Ct 462; 148 L Ed 2d 354 (2000), Justice Sc.alia observed in a concurring opinion that “[t]here is not a single decision, since this Court washed its hands of general common-lawmaking authority, in which we have refused to enforce on ‘public policy’ grounds an agreement that did not violate, or provide for the violation of, some positive law.” [Citation omitted.] “The problem with judicial intuition of a public policy that goes beyond the actual prohibitions of the law is that there is no way of knowing whether the apparent gaps in the law are intentional or inadvertent.” Id.
13 “The meaning of the phrase ‘public policy’ is vague and variable; courts have not defined it, and there is no fixed rule by which to determine what contracts are repugnant to it.” Twin City, supra at 356. As an illustration of such vagueness, “public policy” has been described as the “community common sense and common conscience” and as “abid[ing] only in the customs and conventions of the people — in then clear consciousness and conviction of what is naturally and inherently just and right between man and man.” Skutt v Grand Rapids, 275 Mich 258, 264;. 266 NW 344 (1936). Justice Kelly’s dissenting opinion relies upon this definition of public policy in concluding that the covenant here is unenforceable. However, we disagree with such a nebulous definition because it would effectively allow individual judges discretion to substitute their own personal preferences for those of the public expressed through the regular processes of the law. Instead, we believe that public policy is defined by reference to the laws actually enacted into policy by the public and its representatives.
The county zoning act, MCL 125.216g(2), and the township zoning act, MCL 125.286g(2), state that a “family day care home” “shall be considered a residential use of property for the purposes of zoning . . .
This Court has held that the favoring of a use does not mean that such a use cannot be denied with regard to a particular parcel of land. Kropf v Sterling Hts, 391 Mich 139, 156-157; 215 NW2d 179 (1973). In Kropf, this Court concluded that a municipality can, by way of a local zoning ordinance, prohibit a “favored use” on a particular parcel of land. Similarly, private parties can, by way of a covenant, agree to prohibit a “favored use” on a particular parcel of land. Therefore, even if the operation of “family day care homes,” is a “favored use,” this is an insufficient reason for disregarding a covenant prohibiting the operation of “family day care homes” on the subject property. See Johnstone v Detroit, G H & M R Co, 245 Mich 65, 73-74; 222 NW 325 (1928).
For example, a covenant requiring “x” or “y” would be incompatible with a law or constitutional provision prohibiting “x” or “y”; and a covenant prohibiting “x” or “y” would be incompatible with a law or constitutional provision requiring “x” or “y.”
In Johnstone, this Court concluded that the owners of property in a subdivision subject to a covenant restricting use of property to residence purposes were entitled to just compensation upon the taking of part of such subdivision for public use in violation of such restriction.
For example, the California, Minnesota, and New Jersey Legislatures have enacted provisions voiding any covenants that prohibit “family day care homes.” See Cal Health & Safety Code 1597.40; Minn Stat 245A.11(2); NJ Stat 40:55D-66.5b(a).
Indeed, the importance of enforcing covenants is deeply entrenched in our common law. As early as 1928, it has been expressly held to be the common law of this state. Johnstone, supra at 74. Undergirding this right to restrict uses of property is, of course, the central vehicle for that restriction: the freedom of contract, which is even more deeply entrenched in the common law of Michigan. See McMillan v Mich S & N I R Co, 16 Mich 79 (1867). Justice Kelly’s dissenting opinion dismisses these public policies in a short footnote.
Further, although this case implicates several claims to public policy, our resolution of this case does not require us to balance competing public policies because, as discussed above, the claim that a covenant precluding the operation of “family day care homes” violates public policy is flawed.
“Restrictions for residence purposes are particularly favored by public policy and are valuable property rights.” City of Livonia, supra at 525.
The dissent again fails to recognize this distinction when it states later that “it is impossible to conclude from the record that the family day-care homes do not conform to the ordinary and common meaning of ‘use for residential purposes.’ ” Post at 85-86.
We find it interesting that, although the dissent states that “family day care homes” are “residential in nature” and that they “do not violate restrictive covenants prohibiting commercial and business use,” post at 83, the dissent never comes right out and states that the operation of a “family day care home” is not a commercial or business use. Perhaps, such a straightforward statement of the dissent’s ultimate conclusion would call attention to the flaws underlying such a conclusion.
The dissent relies on City of Livonia in an attempt to downplay the relevance of an intent to make a profit. However, the dissent fails to recognize a critical distinction between City of Livonia and the present case. In City of Livonia, the issue was whether the operation of an adult foster care home violated a covenant prohibiting nonresidential use, while the issue in the instant case is whether the operation of a “family day care home” violates a covenant prohibiting commercial or business uses. The Court in City of Livonia concluded that the operation of an adult foster care home was not a nonresidential use, despite the fact that its patients were required to pay for goods and services obtained there. We agree that the receipt of compensation does not necessarily make an activity nonresidential in nature. However, whether compensation is received plays a far more critical role in the determination of whether an activity is a commercial or business use.
The dissent’s statement that the land use here is not commercial or business in nature because “no showing has been made that the operation of defendants’ family day-care homes had any effect on the overall residential character of their neighborhood,” post at 85, is, therefore, a nonsequitur. Further, as we have explained, plaintiffs’ right to enforce the covenant, as written, does not depend on whether defendants’ violations of the covenant have harmed plaintiffs, although the fact that plaintiffs have initiated this lawsuit and pursued it to this Court suggests that the impact of defendants’ activities upon plaintiffs are not viewed as benignly by the latter as they are by the dissent.
The dissent characterizes the effect of our decision as imposing an “absolute prohibition” upon “family day care homes” on the parties’ properties, and further characterizes this as the “majority’s absolute prohibition.” Post at 87. We feel impelled, however, to point out to the dissent that this is the parties’, not the “majority’s,” prohibition. The parties, not this Court, are the lawmakers with regard to the terms of their own contracts.
Presumably, the dissent would apply this same novel approach to the interpretation of statutes. We note that this would be contrary to MCL 8.3a, which provides that “[a]ll words and phrases shall be construed and understood according to the common and approved usage of the language
This Court has further observed with respect to insurance contracts, “[ojmitting the definition of a word that has a common usage does not create an ambiguity within the policy.” Group Ins Co v Czopek, 440 Mich 590, 596; 489 NW2d 444 (1992). “[SJimply because a policy does not define a term does not render the policy ambiguous.” Auto Club Group Ins Co v Marzonie, 447 Mich 624, 631; 527 NW2d 760 (1994). “Instead, absent a policy definition, terms are ‘given a meaning in accordance with their common usage.’ ” Id. (citation omitted).
The dissent remarkably criticizes the majority opinion because it will have “negative implications regarding the free use of land,” post at 92. Needless to say, we have a rather different view than the dissent of what promotes the “free use of land.” We respectfully suggest that a legal regime in which contract and property rights are respected is one more conducive to this end than a regime in which contract and property rights are subject to the arbitrary vetoes of judges deriving new “public policies” from their own consciences.
The principal evidence that the dissent marshals for its conclusion that this covenant violates public policy is that the Legislature has chosen to regulate “family day care homes,” that the executive branch has established an advisory committee on day care for children, and that the Court of Appeals has said in dictum that “family day care homes” are favored by our public policy. See also note 30. It is not clear how any of this evidence “definitely indicates” a public policy against covenants that prohibit “family day care homes.” Again, even if public policy does favor such homes, this is a considerably different proposition from one that private parties are prohibited from freely entering into agreements not to use their properties for the operation of such homes.
The dissent also relies on zoning statutes to reach its conclusion that this covenant violates public policy. Post at 89-90. However, we also question the relevance of this factor. First, these statutes merely provide that “family day care homes” are to “be considered a residential use of property for the purposes of zoning . . . .” MCL 125.216g(2), MCL 125.286g(2) (emphasis added). They do not state that “family day care homes” are not a commercial or business use. Second, it is well settled that zoning statutes do “not purport to regulate private restrictive covenants.” City of Livonia, supra at 525. “ ‘Zoning laws determine property owners’ obligations to the community at large, but do not determine the rights and obligations of parties to a private contract.’ ” Id., quoting Rofe v Robinson, 415 Mich 345, 351; 329 NW2d 704 (1982). Therefore, “definitions adopted for legislative purposes in housing codes and zoning ordinances [cannot] be employed in interpreting restrictive covenants.” Oosterhouse, supra at 290.
Concerning the dissent’s accusation that this majority “engrafts its own version of what the law should be,” and that our opinion is the “embodiment of judge-made law,” post at 92, in amazement, we can do little more than repeat what we said in Robertson v DaimlerChrysler Corp, 465 Mich 732, 762; 641 NW2d 567 (2002), inviting the “reader, and the citi zens of Michigan, in evaluating these opinions, to reflect upon” which approach to judging is more conducive to these results — an approach in which “public policy” is determined on the basis of policies actually enacted into law by the representatives of the public, or an approach in which “public policy” is fashioned out of thin air by judges and used to defeat the contracts and covenants freely entered into by the people of this state.
The dissent contends that we have failed to give sufficient consideration to the fact that “the Legislature has concluded that family day care homes within neighborhoods are favored . . . .” Post at 96. Even assuming that “family day care homes” are “favored” or permitted, the dissent does not explain the significance of this observation. Unlike the other dissent, which makes this same observation, and concludes as a result that the “public policy” doctrine is implicated, the instant dissent makes no reference whatsoever to the “public policy” doctrine.
If “business” does not mean “business,” we are perplexed as to how parties to similar future contracts can ever ensure that particular uses of property will not occur. How can such future parties be any more clear or direct than the parties to the present agreement? Perhaps, the dissent would have them be required to set forth lengthy enumerations of specific businesses to be prohibited. However, once words are ignored by courts, greater precision by contracting parties in the use of words can only promise a limited degree of certainty as to how such words will be construed by these same courts in the future. | [
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Per Curiam.
i
The defendant was convicted by a jury of first-degree felony murder, MCL 750.316(b), and first-degree child abuse, MCL 750.136b. The defendant was sentenced to terms, respectively, of life without the possibility of parole and ten to fifteen years. The defendant appealed as of right. The Court of Appeals reversed the defendant’s convictions because of the perceived error in admission of other acts evidence against the defendant and remanded the case to the trial court. This Court vacated the judgment of the Court of Appeals and remanded the case to that Court for reconsideration in light of People v Sabin (After Remand), 463 Mich 43; 614 NW2d 888 (2000). 463 Mich 926 (2000). On remand, the Court of Appeals again reversed the defendant’s convictions and remanded the case to the trial court.
On application for leave to appeal by the prosecutor, we reverse the judgment of the Court of Appeals and remand to that Court for consideration of the remaining issues of the defendant that have not yet been addressed. The Court of Appeals erred in its determination that evidence of defendant’s assaultive behavior toward three women was inadmissible under Sabin. We hold that the evidence was admissible to establish the common scheme, plan, or system of the defendant in perpetrating a particular type of physical assault. From that evidence the jury could properly have inferred that the charged acts were committed, and were committed by the defendant. Sabin, supra at 66-67.
ii
On November 7, 1996, paramedics were called to a home in Battle Creek, Michigan, because of a report that a child was choking. The paramedics found Caitlan McLaughlin, a two-and-a-half-year-old girl who was not breathing, had no pulse, and appeared to be dead. After communication with physicians at the nearby hospital emergency room, Caitlan was officially pronounced dead. An autopsy determined that the child had several internal injuries including a subdural hematoma, a healing tear of the liver, hemorrhage in the region of the pancreas, another area of bleeding in the colon (near the appendix), and a large amount of fluid in the abdomen. Caitlan had numer ous circular bruises on her abdomen and a bruise across the bridge of her nose. The injuries were of varying ages, from less than half a dozen hours up to five to seven days old. The cause of death was multiple blunt force injuries. The pathologist opined that the aggregate of the injuries caused Caitlan’s death, and that the death was not accidental.
The week before Caitlan died, defendant had been her sole care provider while her mother was at work. Defendant denied any wrongdoing in connection with Caitlan’s death.
The defendant was charged with open murder, MCL 750.316, felony murder on the basis of perpetration or attempted perpetration of child abuse, MCL 750.316(l)(b), and first-degree child abuse, MCL 750.136b. The prosecutor notified the defendant of her intent to introduce other acts evidence pursuant to MRE 404(b).The trial court held an evidentiary hearing at which the proposed other acts witnesses testified. Three of the witnesses were former girlfriends of the defendant and included the child’s mother. Although the prosecutor referred to alternate theories of admissibility under MRE 404(b), the theory before us is proof of a common scheme, plan, or system.
One witness testified that she dated defendant in 1996, the year before Caitlan’s death. She described incidents in which the defendant grabbed her arms, put his hands in her mouth, and stretched her lips. This resulted in bruises on her gums. The witness attributed the violence to the defendant’s irritation with her. She also described other incidents involving being threatened with a metal folding chair and having her eyes blackened.
Another witness testified that during the time she was involved with the defendant, she was assaulted by him at least once a week. Defendant “head-butted” her, a movement described as defendant hitting his forehead on the witness’ nose. One incident caused bleeding from both her nostrils. The witness described being picked up and thrown down by the defendant. Although the defendant never punched her, the witness said the defendant would grab, throw, and shove her.
Another witness was Caitlan’s mother. She described the beginning of her relationship with the defendant in late 1995 and their leasing of a residence together in the fall of 1996. She testified that the defendant would pin down her arms with his knees when he was angry, causing bruises on her arms. The defendant would push and shove her. Once, the defendant kneed her in her mouth, which caused her lips to become swollen and bruised. The defendant poked her in the forehead and chest with enough force that it hurt. Caitlan’s mother gave the descriptive name of “fish-hook” to the maneuver described by the first witness in which the defendant put his fingers or hand inside her mouth and forcefully pulled. Caitlan’s mother also described several head-butting incidents.
Additionally, the prosecutor summarized the evidence that would be presented by the forensic pathologist and the expert in child abuse.
The trial court ruled on the prosecutor’s motion on the first day of trial. The court looked to this Court’s decision in People v VanderVliet, 444 Mich 52; 508 NW2d 114 (1993), and relied upon its four-pronged analysis:
In VanderVliet, supra at 74-75, we adopted the approach to other acts evidence enunciated by the United States Supreme Court in Huddleston v United States, 485 US 681, 691-692; 108 S Ct 1496; 99 L Ed 2d 771 (1988). That approach employs the evidentiary safeguards already present in the rules of evidence. First, the prosecutor must offer the other acts evidence under something other than a character to conduct or propensity theory. MRE 404(b). Second, the evidence must be relevant under MRE 402, as enforced through MRE 104(b), to an issue of fact of consequence at trial. Third, under MRE 403, a “ ‘determination must be made whether the danger of undue prejudice [substantially] outweighs the probative value of the evidence in view of the availability of other means of proof and other facts appropriate for making decision of this kind under Rule 403.’ ” VanderVliet, supra at 75, quoting advisory committee notes to FRE 404(b). Finally, the trial court, upon request, may provide a limiting instruction under MRE 105. [Sabin, supra at 55-56.]
The trial court held that the evidence was not being offered to show the defendant’s propensity to commit the criminal act. Rather, the other acts evidence was offered to show defendant’s scheme, intent, system, or plan in committing the acts and to show the lack of accident. The court specifically noted the testimony regarding episodes of head-butting and mouth-grabbing committed by the defendant. The court ruled that the evidence was relevant to show who inflicted the injuries on the child and the intent with which they were done. The court also found the other acts evidence to be highly probative. It recognized the danger of unfair prejudice, but held that the prejudice was diminished because the other acts evidence involved women, not children, and the women gave no testimony about the defendant harming children. Finally, the court stated that it would give a limiting instruction to the jury regarding the use of the other acts evidence.
At trial, an expert on child abuse opined that some of the bruises on Caitlan’s jaw were likely five days old and resembled a fingernail imprint. Another mark on Caitlan’s jaw was described by the expert as typical of the mark left when picking up and shaking a child in a certain way. The witness also described poking injuries sustained by Caitlan that could not have been accidental. The expert opined that the head injuries had been inflicted on the day the child died.
The defendant testified. He attributed several of Caitlan’s injuries to a fall on a bathtub and falls on toy boxes that occurred while she was in his care. He denied he kicked or punched Caitlan on the day she died. He admitted he spanked her two days previously, but said he had “swatted” her only once.
The jury convicted the defendant of felony murder and first-degree child abuse. The defendant was acquitted of open murder.
hi
The Court of Appeals has twice reversed the defendant’s convictions. In its first opinion, the Court looked to VanderVliet, supra, and People v Crawford, 458 Mich 376; 582 NW2d 785 (1998), and found that the other acts evidence made none of the facts in dispute at defendant’s trial more or less probable. The Court held that substantial dissimilarities existed between the assaults on the other acts witnesses and the injuries sustained by the victim in this case. The Court stated its concern that the evidence had been used to show the defendant’s propensity to commit a criminal act and concluded that the danger of unfair prejudice outweighed any marginal probative value the evidence possessed.
We remanded the case to the Court of Appeals after the prosecutor sought leave to appeal in this Court. On remand for reconsideration in light of Sabin, the Court of Appeals again reversed, reasoning that the other acts evidence was used to prove the “very act” that was the object of proof. Perceiving that a higher degree of similarity between the other acts evidence and the charged act was required, the Court held that there was “nothing, within the universe of violent assaults” particularly unusual or distinctive in the conduct of the defendant. The Court also stated that there was “precious little evidence that there was a criminal act” involving the child. In this the Court of Appeals erred.
IV
A trial court ruling admitting evidence is reviewed for an abuse of discretion. People v Bahoda, 448 Mich 261; 531 NW2d 659 (1995). An abuse of discretion occurs “when the result is ‘so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but [the] defiance [of it] . . . .’ ” Dep’t of Transportation v Randolph, 461 Mich 757, 768; 610 NW2d 893 (2000). An abuse of discretion involves far more than a difference of opinion. Id. Further, a trial court’s decision on a close evidentiary question ordinarily cannot be an abuse of discretion. People v Smith, 456 Mich 543, 550; 581 NW2d 654 (1998). An abuse of discretion might, however, result where the trial court operates within an incorrect legal framework. In this case, the Court of Appeals expressed its difference of opinion with the trial court regarding the degree of similarity between the other acts evidence and the charged conduct. The approach taken by the Court of Appeals, however, failed to take into account the evidence presented to the trial court in support of the prosecutor’s theory that Caitlan died as a result of multiple, nonaccidental, blunt force injuries. The evidence presented at the evidentiary hearing and at trial supported the trial court’s conclusion that there was a common plan, scheme, or system in the defendant’s assaults on the women and on the child. Indeed, the Court of Appeals panel’s recitation of the facts is perplexing. Rather than viewing the evidence in a light most favorable to the prosecution, as it was required to do, the panel discounted the prosecution’s evidence and accorded undue weight to defendant’s version of the events. See slip op at 1-2.
In Sabin, we held that evidence of similar misconduct is logically relevant to show that the charged act occurred where the uncharged misconduct and the charged offense are sufficiently similar to support an inference that they are manifestations of a common plan, scheme, or system. For other acts evidence to be admissible there must be such a concurrence of common features that the uncharged and charged acts are naturally explained as individual manifestations of a general plan. Sabin, supra at 64-65. Sabin involved the use of other acts evidence to prove that the charged act occurred. We recognized that the degree of similarity between the uncharged and charged conduct required as a threshold for admissi bility in such a case was higher than that needed to prove intent, but not as great as that needed to prove identity. Id. at 65.
In this case, the Court of Appeals imposed a standard of a high degree of similarity between the other acts and the charged acts, apparently because it believed that the evidence presented to the trial court did not demonstrate any unlawful conduct. Slip op at 10. The Court of Appeals was mistaken. The testimony and offers of proof at the evidentiary hearing suggested that Caitlan had died from multiple, non-accidental, blunt force injuries, and that her death was a homicide.
Specifically, the evidence established that the “fishhook” assaults on the defendant’s former girlfriends were similar to the method or system that could have caused the fingernail marks on Caitlan’s right cheek. Further, one of the other acts witnesses described the forceful and hurtful “poking” inflicted upon her by the defendant. The forensic pathologist testified that Caitlan had fifteen to twenty circular bruises on her abdomen, the largest of which measured about one inch. The expert on child abuse testified that these injuries were typical of injuries received when a child has been poked, and that accidental injuries in that area of a child’s body were completely atypical. Thus, contrary to the observations of the Court of Appeals, there were both injuries distinctive from ordinary assaults, and similarities between the other acts (uncharged conduct) and injuries to the child (charged conduct). As we stated in Sabin, distinctive and unusual features are not required to establish the existence of a common design or plan. The evidence of uncharged acts needs only to support the inference that the defendant employed the common plan in committing the charged offense. Sabin, supra at 65-66.
The trial court did not abuse its discretion in determining that the assaults by the defendant on his former girlfriends and the charged offenses regarding Caitlan shared sufficient common features to permit the inference of a plan, scheme, or system. The charged and uncharged acts contained common features beyond similarity as mere assaults.
v
The trial court operated within the correct legal framework in determining the evidence admissible under Sabin. That the Court of Appeals had a different view of the evidence does not establish an abuse of discretion by the trial court. Therefore, we reverse the judgment of the Court of Appeals, and remand this case to that Court for consideration of defendant’s remaining arguments.
Corrigan, C.J., and Weaver, Taylor, Young, and Markman, JJ., concurred.
Cavanagh and Kelly, JJ., concurred in the result only.
Unpublished opinion per curiam, issued February 25, 2000 (Docket No. 207358). The Court did not address defendant’s other issues, which concerned unsolicited testimony about other bad acts committed by the defendant, omission of an instruction on specific intent, and violation of double jeopardy principles in the imposition of sentences on both the felony murder and the predicate felony.
Unpublished opinion per curiam, issued November 13, 2001 (Docket No 207358).
The prosecutor offered four witnesses, of whom three were allowed to testify at the trial. Only their testimony will be discussed. The prosecutor described the testimony that would be given by the pathologist, Laurence Simson, M.D., and an expert in child abuse, Stephen Guertin, M.D.
MRE 404 states:
Character evidence not admissible to prove conduct; exceptions; other crimes
(b) Other crimes, wrongs, or acts.
(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in con formity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.
(2) The prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial and the rationale, whether or not mentioned in subparagraph (b)(1), for admitting the evidence. If necessary to a determination of the admissibility of the evidence under this rule, the defendant shall be required to state the theory or theories of defense, limited only by the defendant’s privilege against self-incrimination.
Contrary to the observation of the Court of Appeals, the defendant offered “accident” as an explanation of several of Caitlan’s injuries. For example, the liver injury was attributed to a fall off a bicycle, and a facial injury was attributed to Caitlan falling on a toy box while in the defendant’s care. However, the testimony of the pathologist and the expert on child abuse presented ample evidence that the injuries were not accidental.
The bruises on Caitlan’s buttocks were described by the experts as massive and as dating from three days before death. Multiple blows, not a single blow, were the cause.
The Court of Appeals cited no authority for its view of what constitutes the “universe of violent assaults.” | [
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Kelly, J.
At issue in this case is whether the trial judge fulfilled his obligation to articulate a substantial and compelling rationale for the sentences that he imposed. For each conviction, defendant’s minimum sentence was an extreme upward departure from the range set by the sentencing guidelines. We conclude that the judge articulated adequate reasons to support a departure, but failed to justify the extent of this departure.
We hold that the departure was an abuse of discretion because the trial judge did not establish why the sentences imposed were proportionate to the offense and the offender. Therefore, we vacate defendant’s sentences and we remand this case to the trial judge for resentencing and articulation of the rationale for the extent of any departure made on remand.
FACTS AND PROCEDURAL HISTORY
This is a case involving sexual abuse of a child. The victim’s mother began taking the victim to defendant’s home for day care when she was one year old. Over time, the mother developed a friendship with defendant and with his wife. The victim, whose family fife was fatherless, chaotic, and disorganized, began to see defendant as a father figure. When the mother was sent to a halfway house for nine months for drug abuse, the victim and her younger sister moved into defendant’s home. Eventually, the mother moved to Atlanta, Georgia, taking her children with her. However, the families stayed in touch and remained close. The victim and her sister returned to Michigan dining the summers to spend time with defendant and his wife.
When the mother lost her job in Atlanta, defendant and his wife offered to rent her a room. She accepted. After the school year ended, she sent her daughters back to Michigan to live with defendant and his wife. The victim was nine years old at the time. The mother followed her daughters to Michigan at the end of the summer. She, her two daughters, and their younger brother all shared a room in defendant’s home.
The victim testified that defendant began to sexually abuse her when she was nine years old. All the assaults were similar. When the victim was alone on a couch with defendant watching television, defendant would touch her buttocks and penetrate her vagina and anus with his finger. The victim testified that defendant’s actions frightened her and that defendant would stop assaulting her when she got up and left the room. The victim also testified that defendant threatened that he would evict her family from the house if she told anyone about the assaults.
The assaults continued over a 15-month period, until the victim revealed them to a friend. The information made its way to the victim’s mother, who called the police. Defendant was charged with and a jury convicted him of three counts of first-degree criminal sexual conduct (CSC-I). The recommended minimum sentence range under the sentencing guidelines was 9 to 15 years’ imprisonment. The prosecutor requested that the trial judge sentence defendant to a minimum sentence at the high end of the guidelines with a “very, very lengthy tail.”
The judge went further than requested. He imposed a minimum sentence for each conviction that exceeded the guidelines recommendation, explaining:
This is the type of case that I think manifests the absolute worst type of exploitation. A child was placed in a position of trust and care with the defendant and his wife. This was at a time a 10 year old child had come from a clearly dysfunctional family, and this was an opportunity for [defendant] to provide a sense of refuge and a sense of stability clearly for [the victim].
There was no male figure in her life, and [defendant] had that opportunity to fill that role, which could have been not only a blessing for him but certainly a blessing for [the victim].
Those of us who have daughters certainly understand that fathers are in a very unique position with regard to their daughters and that we have the opportunity in many respects based on our relationship and the nature of the relationship that we have with our daughters to model or pattern the iype of healthy or unhealthy relationship that young women then grow up to have with men in the future as adults.
And so what happened here? Here this 10 year old child looking for, and in fact starved for a positive adult male role model ends up being over a period of about 15 months a sex toy for the defendant. To what extent she will be damaged in the future, who knows? One certainly hopes that she will be able to do well.
But certainly this was a circumstance where [defendant] chose to exploit this relationship. And then in his testimony to blame the child, categorize her as a liar.
And through this particular ordeal forcing the victim, this 10 year old, to have to go through a rather, for her, for a 10 year old, the kind of frightening gynecological type of examination certainly adding to the trauma in this particular case, I think that certainly the Michigan Supreme Court in People versus Babcock has stated that if the Court is going to go outside the guidelines, the Court must in fact look to objective and verifiable facts and circumstances in evidence.
Certainly it is an objective and verifiable fact that the defendant stood in the role of a parental figure for a child who had none. That this was a child who was sexually exploited over a period of 15 months. That’s verifiable.
These are the characteristics that I think don’t adequately get covered in the guidelines. They don’t. I mean it’s unimaginable to me to think that a 10 year old who may be fearful of the fact that she may lose the roof over her head for herself, her mother and her two siblings, is forced to silently endure this kind of sexual exploitation.
The guidelines didn’t calculate that, but I am.
On a departure evaluation form, the judge summarized his reasons for the departure: (1) defendant’s role as a child-care provider, (2) the period over which the abuse occurred, (3) the defendant’s threat to evict the victim and her family if she told anyone about his conduct, and (4) the gynecological examination the victim was forced to undergo. The judge sentenced defendant to three concurrent terms of 30 to 50 years’ imprisonment, with credit for 23 days served. The minimum term of 30 years’ imprisonment is twice the highest minimum term defendant could have received had the judge sentenced him within the guidelines recommendation.
The Court of Appeals affirmed defendant’s convictions and sentences in an unpublished opinion per curiam. It concluded that the reasons the judge gave for departure were objective and verifiable. It further concluded that the judge did not abuse his discretion in determining that his reasons were substantial and compelling. Finally, the Court of Appeals held that the sentences were proportionate to the seriousness of the crimes.
Defendant applied for leave to appeal in this Court. We ordered oral argument on whether to grant the application or take other peremptory action.
THE TRIAL COURT’S INITIAL BURDEN TO ARTICULATE SUBSTANTIAL AND COMPELLING REASONS FOR DEPARTURE
Under MCL 769.34(3), a minimum sentence that departs from the sentencing guidelines recommendation requires a substantial and compelling reason articulated on the record. In interpreting this statutory requirement, the Court has concluded that the reasons relied on must be objective and verifiable. They must be of considerable worth in determining the length of the sentence and should keenly or irresistibly grab the court’s attention. Substantial and compelling reasons for departure exist only in exceptional cases. “In determining whether a sufficient basis exists to justify a departure, the principle of proportionality . . . defines the standard against which the allegedly substantial and compelling reasons in support of departure are to be assessed.” For a departure to be justified, the minimum sentence imposed must be proportionate to the defendant’s conduct and prior criminal history.
The trial court may not base a departure “on an offense characteristic or offender characteristic already taken into account in determining the appropriate sentence range unless the court finds from the facts contained in the court record, including the presentence investigation report, that the characteristic has been given inadequate or disproportionate weight.”
On appeal, courts review the reasons given for a departure for clear error. The conclusion that a reason is objective and verifiable is reviewed as a matter of law. Whether the reasons given are substantial and compelling enough to justify the departure is reviewed for an abuse of discretion, as is the amount of the departure. A trial court abuses its discretion if the minimum sentence imposed falls outside the range of principled outcomes.”
Under MCL 769.34(7), the court must advise a defendant that he or she may seek appellate review of a sentence that is more severe than the guidelines recommendation. There is no preservation requirement for review of such a sentence.
In this case, the trial judge articulated the reasons for his departure. In particular, he referred to the 15-month period over which the serial abuse occurred. The fact that defendant abused the victim for more than a year was not reflected in the guidelines.
That sexual abuse occurred over a long period is an objective and verifiable reason for departure. The abuse in this case was not something that was completed quickly. For more than a year, the victim undoubtedly suffered psychological stress from the realization that defendant might abuse her again and again. This fact is of considerable worth in determining defendant’s minimum sentence. Also, it is a fact that does not exist in all criminal sexual conduct cases. Hence, the trial judge did not abuse his discretion in concluding that the long period of abuse provided a substantial and compelling reason for departure.
The judge also relied on the fact that defendant threatened to retaliate by evicting the victim and her family if she disclosed to anyone his predatory sexual behavior. This is objective and verifiable because the threat was external to the minds of those involved and could be confirmed on the record. The judge did not abuse his discretion in concluding that this fact provided a substantial and compelling reason to depart. It was not considered in the guidelines, and making such a threat to a child could cause significant psychological anguish. It forced the child to choose between reporting the defendant’s repeated criminal assaults and protecting her family from homelessness. The threat was distinct enough to actively and strongly draw the judge’s attention.
The judge additionally relied on the gynecological examination the victim underwent as a result of defendant’s sexual abuse. Defendant contends that such examinations are to be expected when sexual abuse has been alleged and cannot constitute a substantial and compelling basis for departure. Defendant is correct that commonplace repercussions of criminal activity do not support departures, which may be made only in exceptional cases. This is because the sentencing guidelines are designed to promote uniformity in criminal sentencing by “ ‘ensuring] that offenders with similar offense and offender characteristics receive substantially similar sentences.’ ” Hence, we agree that this repercussion of criminal sexual conduct would not generally represent such a wide deviation from the norm that a departure could be premised on it.
However, under the unique circumstances of this case, the trial judge’s conclusion that the gynecological examination provided a substantial and compelling reason for departure was not an abuse of discretion. The evidence indicates that the examination added considerably to the victim’s trauma. This trauma was demonstrated by the victim’s testimony that the examination was uncomfortable and embarrassing. More significantly, it was demonstrated by her behavior during the examination. Under these circumstances, the judge did not abuse his discretion in concluding that this repercussion of defendant’s behavior was of considerable worth in determining the length of defendant’s minimum sentence.
By citing these facts that justified departure in this case, the trial judge met the initial burden of articulation.
PROPORTIONALITY
Having concluded that the trial judge cited substantial and compelling reasons to justify a departure, we turn to the question whether the reasons also justified the particular departure: a minimum sentence that is 15 years more than the top of the guidelines range. “The obligation is on the trial court to articulate a substantial and compelling reason for any departure.” However, the statutory guidelines require more than an articulation of reasons for a departure; they require justification for the particular departure made.
MCL 769.34(3) states:
A court may depart from the appropriate sentence range established under the sentencing guidelines set forth in chapter XVII if the court has a substantial and compelling reason for that departure and states on the record the reasons for departure. [Emphasis added.]
We have stressed that this statutory language requires the trial court to “justify the particular departure in a case, i.e., ‘that departure.’ ”
Appellate courts are obliged to review the trial court’s determination that a substantial and compelling reason exists for departure. Accordingly, the trial court’s justification “must be sufficient to allow for effective appellate review.” In Babcock, this Court explained that an appellate court cannot conclude that a particular substantial and compelling reason for departure existed when the trial court failed to articulate that reason. Similarly, if it is unclear why the trial court made a particular departure, an appellate court cannot substitute its own judgment about why the departure was justified. A sentence cannot be upheld when the connection between the reasons given for departure and the extent of the departure is unclear. When departing, the trial court must explain why the sentence imposed is more proportionate than a sentence within the guidelines recommendation would have been.
The “principle of proportionality. . . defines the standard against which the allegedly substantial and compelling reasons in support of departure are to be assessed. ” Hence, to complete our analysis of whether the trial judge in this case articulated substantial and compelling reasons for the departure, we must, of necessity, engage in a proportionality review. Such a review considers “whether the sentence is proportionate to the seriousness of the defendant’s conduct and to the defendant in light of his criminal record...” “[Everything else being equal, the more egregious the offense, and the more recidivist the criminal, the greater the punishment.”
As we noted in Babcock, the very purpose of the sentencing guidelines is to facilitate proportionate sentences. We stated:
Under the guidelines, offense and prior record variables are scored to determine the appropriate sentence range. Offense variables take into account the severity of the criminal offense, while prior record variables take into account the offender’s criminal history. Therefore, the appropriate sentence range is determined by reference to the principle of proportionality; it is a function of the seriousness of the crime and of the defendant’s criminal history.[ ]
A sentencing departure is appropriate when “there are substantial and compelling reasons that lead the trial court to believe that a sentence within the guidelines range is not proportionate to the seriousness of the defendant’s conduct and to the seriousness of his criminal history... .” The departure from the guidelines recommendation must “contribute to a more proportionate criminal sentence than is available within the guidelines range.”
Here the trial judge gave no explanation for the extent of the departure independent of the reasons given to impose a departure sentence. Therefore, no justification was offered to support the large departure made.
One potential means of offering such a justification is to place the specific facts of a defendant’s crimes in the sentencing grid. When that is done in this case, the result suggests that the sentence imposed was disproportionate. Defendant’s crimes are classified as class A felonies. The minimum sentence ranges for class A offenses (in months) are contained in the following grid:
Prior Record Variable Level (Total PRV Points)
The prior record variable (PRV) level is determined by the total points assessed for the prior record variables scored. The offense variable (OV) level is determined by the total points assessed for the offense variables scored.
Defendant had a total PRV score of 20 points, which corresponds to a PRV level C. The trial judge assessed 10 points for OV 10 (exploitation of a vulnerable victim) and 50 points for OV 11 (criminal sexual penetration), resulting in a total OV score of 60 points. This corresponds to an OV level IV Defendant’s recommended minimum sentence range of 108 to 180 months is found by locating the intersection of PRV level C and OV level IV on the sentencing grid for class A felonies.
The trial judge sentenced defendant as if his OV and PRV scores corresponded to the E-VI, F-V or F-VI cell of the grid. These cells provide the highest possible minimum sentences for class A felonies. For defendant’s sentence to fall within the guidelines recommendation for the E-VI, F-V or F-VI cell, the judge would have had to assess 20 to 40 additional OV points and 30 to 45 additional PRV points. On this record, it is hard to understand what factors would justify the extent of the departure made. That difficulty is compounded by the fact that the trial judge offered no justification why this departure was a proportionate one.
It is compelling to compare defendant’s departure sentence, 30 to 50 years (360 to 720 months), with the recommended minimum sentences on the applicable sentencing grid. Given defendant’s PRV level of C, his recommended minimum sentence could not have been 360 months. The highest recommended minimum sentence on the grid for that PRV level is 225 months. Accordingly, simply comparing defendant’s actual minimum sentences to the recommended minimum sentences for offenders with similar criminal histories suggests that defendant’s sentences might be disproportionate.
Moreover, the substantial and compelling reasons on which the judge based his departure were related to the nature of the offense, not to the extent of defendant’s criminal history. Put otherwise, the departure reasons pertained to defendant’s OV score, not his PRV score. With regard to the OV score, it is theoretically possible for a defendant to receive a total of 590 points for a crime against a person, such as CSC-I. If a defendant has a low PRV score but an OV score over 100, the court may render a proportionate sentence above the highest minimum for someone with a similar PRV score. This is because the Legislature did not contemplate a defendant with such a high OV score, given that it used 100 OV points as the maximum for the grid.
However, that is not the case here, because defendant’s OV score is within the lower OV levels on the grid. Thus, the trial judge must explain why the reasons for the departure that he articulated warranted a drastic departure from the highest minimum available for a defendant with a similar PRV score. The burden will be heavy, because the sentence imposed is literally off the charts for a defendant with a criminal background similar to that of this defendant.
A comparison of defendant’s sentences to the sentences recommended for other offenders who committed the same type of crime suggests that defendant’s sentences might be disproportionate. Although the atrocity of any criminal sexual conduct offense is not to be minimized, proportionality is still judged by weighing both the nature of the offense and the offender’s criminal history. Given the fact that defendant had no criminal history, the 30-year minimum sentence imposed for each conviction might be a disproportionate departure.
Certainly, a trial court that is contemplating a departure is not required to consider where a defendant’s sentence falls in the sentencing range grid. However, we think that reference to the grid can be helpful, because it provides objective factual guideposts that can assist sentencing courts in ensuring that the “ ‘offenders with similar offense and offender characteristics receive substantially similar sentences.’ ”
Appellate review is also aided when a court explains the similarity between the facts justifying the departure and the facts describing a crime meriting the same sentence under the guidelines. Also, a comparison of a defendant’s characteristics and those of a hypothetical defendant whose recommended sentence is comparable to the departure sentence is a valuable exercise. This, too, will aid an appellate court in reviewing the proportionality of the departure.
The trial court should note which variables it is considering in such a comparison. It should explain why its reasons for departure are as significant as the characteristics that would produce an equally lengthy recommended minimum sentence under the guidelines.
Turning to the facts in the instant case, it is obvious that CSC-I involving a nine-year-old child is a heinous crime. It damages children, families, and friendships. But all CSC-I cases do not wreak the same amount of damage. That the sexual abuse in this case occurred over a 15-month period is extraordinarily disturbing, as the trial judge recognized. That defendant threatened to evict the victim and her family if she reported the crime is also of considerable importance in determining defendant’s sentence. That the victim underwent a traumatic gynecological examination is also of consequence.
The trial judge articulated some appropriate reasons for departure, but failed to explain why those reasons justify the extent of the departure. Furthermore, it is not readily apparent why such a substantial departure is warranted on the basis of those reasons. While defendant’s crime is most certainly heinous, we cannot discern why the trial judge selected a minimum sentence so far in excess of the recommended guidelines range. We cannot uphold such an unsupported departure.
As noted earlier, the sentencing guidelines were designed to promote uniformity in sentencing. One of the purposes of the proportionality requirement is to minimize idiosyncrasies. We do not suggest that trial courts must sentence defendants with mathematical certainty. Nor are any precise words necessary for them to justify a particular departure.
Ultimately, in reviewing sentences, appellate courts examine the reasons articulated for departure. The trial court’s articulation must be sufficiently detailed to facilitate appellate review. This includes an explanation of why the sentence imposed is more proportionate to the offense and the offender than a different sentence would have been. Here the trial judge faded to offer any valid explanation justifying why he chose to sentence defendant to minimum terms of imprisonment of 30 years. As such, we must vacate defendant’s sentences and remand the case to the trial judge so that he may articulate why this level of departure is warranted or resentence defendant.
RESPONSE TO JUSTICE CORRIGAN’S DISSENT
Contrary to Justice CORRIGAN’s assertion, our approach is completely consistent with Babcock and the language of MCL 769.34. We emphasize in this opinion a point that was made in Babcock. It is that, under MCL 769.34(3), “the trial court must articulate on the record a substantial and compelling reason to justify the particular departure imposed.” Although Justice CORRIGAN argues that neither Babcock nor MCL 769.34 requires that this case be remanded, she fails to identify where in the record the trial judge justified the particular departure he made. She cannot identify it because the trial judge failed to provide it. We cannot uphold a departure when the connection between the reasons given for departure and the extent of the departure is so unclear. To do so would be akin to immunizing sentencing decisions from review for proportionality. Moreover, it would undermine the Legislature’s goal in enacting the sentencing guidelines.
The Legislature adopted the guidelines to promote uniform sentencing across the state. The general rule is that minimum sentences must be within the recommended guidelines range. A defendant is entitled to be sentenced within that range unless the judge provides a substantial and compelling reason why a departure sentence is more proportionate to the offense and the offender. The judge must explain why a sentence outside the range better promotes uniform sentencing, in accordance with the purpose of the guidelines.
Justice CORRIGAN contends that it is sufficient to further the legislative goal of sentencing uniformity to require judges to articulate substantial and compelling reasons for their departures. She argues that this requirement ensures that departures are difficult enough to justify that the exception does not swallow the rule. She further asserts that, as long as the record supports a departure, any departure sentence should be upheld on appeal as long as it is reasonable. She rejects this Court’s holding in Babcock when she opines that a judge should not be required to justify the particular departure sentence imposed.
Justice CORRIGAN relies on MCL 769.34(11), which states:
If, upon a review of the record, the court of appeals finds the trial court did not have a substantial and compelling reason for departing from the appropriate sentence range, the court shall remand the matter to the sentencing judge or another trial court judge for resentencing under this chapter.
Justice Corrigan misconstrues this provision by failing to read it in the context of the rest of the statute.
In MCL 769.34(3), the Legislature put the burden on the trial court to place on the record one or more substantial and compelling reasons for a particular departure. Hence, it is the trial court that must justify on the record both the departure and the extent of the departure. This is not to say that appellate courts need examine only the sentencing transcript to determine if the court abused its discretion in imposing a sentence. Under MCL 769.34(11), appellate courts review the record to ascertain if the court articulated adequate reasons for the departure and to justify the extent of the departure. If, after reviewing the whole record, the connection between the reasons given for departure and the extent of the departure is unclear, then the sentence cannot be upheld.
Moreover, simply requiring a court to articulate substantial and compelling reasons for a departure would not promote uniformity. Trial courts would not be constrained to impose only those sentences that they can justify. Under the rule advocated by Justice CORRIGAN, defendants with similar offense and offender characteristics could receive widely divergent departure sentences. Justice CORRIGAN would not subject sentences based on a departure to full appellate review. Any arguably reasonable sentence would be upheld, even if it were not proportionate to the offense and the offender. A lack of meaningful review would inevitably encourage idiosyncratic sentencing. Such a result is contrary to the Legislature’s express intent.
The requirement that the trial court justify the extent of the departure is not overly burdensome. The court need only reasonably comply with the statutory articulation requirement in order to facilitate appellate review. Justice CORRIGAN expends a great deal of energy attempting to rebut an argument that we do not make: that a trial court must provide a mathematical justification for its departure.
Our observation that grounding a departure in the sentencing guidelines will help to explain the extent of the departure does not mean that departure can be reduced to a mathematical equation. To the contrary, mathematical precision in sentencing is neither required nor possible. Nonetheless, the difference between the sentence imposed based on a departure and the recommended minimum sentence range under the guidelines is relevant to the proportionality analysis. When Justice CORRIGAN advocates upholding defendant’s sentences even though the judge failed to justify this difference, she disregards Babcock.
Justice CORRIGAN relies heavily on the United States Supreme Court decision in Gall v United States. There the Court addressed whether an appellate court reviewing a substantial variance from the federal sentencing guidelines could require that the departure be justified by “extraordinary circumstances.” The Gall Court held that an appellate court could consider the degree of deviation from the federal sentencing guidelines when reviewing a departure. However, it rejected “an appellate rule that requires ‘extraordinary’ circumstances to justify a sentence outside the Guidelines range.” The Gall Court also rejected “the use of a rigid mathematical formula” in gauging the justifications for the departure.
Much of the Gall Court’s analysis is inapplicable to Michigan’s indeterminate sentencing guidelines. The federal sentencing guidelines are not mandatory. By contrast, a sentence in Michigan must be within the guidelines recommendation unless the court states on the record one or more substantial and compelling reasons to depart from it. Substantial and compelling reasons for departure exist only in exceptional cases. And when a trial court renders a departure sentence, Michigan appellate courts must review whether the court abused its discretion in concluding that extraordinary circumstances justified it.
To the extent that Justice CORRIGAN relies on Gall to reject the use of a rigid mathematical formula, her reliance is misplaced. As previously indicated, we do not adopt a rigid mathematical formula. Instead, consistently with Gall, we stress that the difference between a departure sentence and one within the recommended guidelines range is relevant to the proportionality analysis. Accordingly, it is appropriate for courts to articulate the required justification for departure by anchoring that justification in the sentencing guidelines.
Justice CORRIGAN buoys her position with facts that are not relevant. For instance, it is true that the trial judge in this case could have imposed a life sentence. But this fact does not bear on whether he justified the sentence he actually imposed. Similarly, Justice CORRIGAN spends considerable time discussing the behavior of defendant’s wife during the trial. But even if the wife’s behavior could be attributed to defendant, the judge did not cite it as a basis for departure. Accordingly, it cannot support the departure made.
Justice CORRIGAN suggests that our analysis resembles de novo review. Her assertion is unexplained and misguided. We continue to review for an abuse of discretion. We weigh whether the reasons that the trial court gave are substantial and compelling enough to justify the departure sentence imposed. In this case, the judge abused his discretion because he imposed a departure sentence without adequately justifying the extent of the departure. Therefore, the sentence falls outside the range of principled outcomes.
The analysis set forth in this opinion is consistent with MCL 769.34 and with the caselaw interpreting that statute. Moreover, it is not overly burdensome, and it advances the Legislature’s goal of sentencing uniformity. The same cannot be said for Justice CORRIGAN’S analysis.
SUMMARY
In order to assist trial courts in fulfilling their statutory obligations, we offer the following summary:
(1) The trial court bears the burden of articulating the rationale for the departure it made. A reviewing court may not substitute its own reasons for departure. Nor may it speculate about conceivable reasons for departure that the trial court did not articulate or that cannot reasonably be inferred from what the trial court articulated.
(2) The trial court must articulate one or more substantial and compelling reasons that justify the departure it made and not simply any departure it might have made.
(3) The trial court’s articulation of reasons for the departure must be sufficient to allow adequate appellate review.
(4) The minimum sentence imposed must be proportionate. That is, the sentence must adequately account for the gravity of the offense and any relevant characteristics of the offender. To be proportionate, a minimum sentence that exceeds the guidelines recommendation must be more appropriate to the offense and the offender than a sentence within the guidelines range would have been.
(5) When fashioning a proportionate minimum sentence that exceeds the guidelines recommendation, a trial court must justify why it chose the particular degree of departure. The court must explain why the substantial and compelling reason or reasons articulated justify the minimum sentence imposed.
(6) It is appropriate to justify the proportionality of a departure by comparing it against the sentencing grid and anchoring it in the sentencing guidelines. The trial court should explain why the substantial and compelling reasons supporting the departure are similar to conduct that would produce a guidelines-range sentence of the same length as the departure sentence.
(7) Departures from the guidelines recommendation cannot be assessed with mathematical precision. The trial court must comply reasonably with its obligations under the guidelines, as set forth in this opinion, to further the legislative goal of sentencing uniformity.
CONCLUSION
Some of the reasons that the trial judge articulated as the basis for the departure are legitimate. However, those reasons fail to justify the severity of the minimum sentences that he imposed. From our review of the record and of the judge’s reasons for departure, it is unclear why a minimum sentence of 30 years’ imprisonment is warranted for this defendant.
We vacate defendant’s sentences and remand this case to the trial judge for resentencing and for an explanation of the extent of any departure made on remand. We deny leave to appeal in all other respects.
Taylor, C.J., and Cavanagh, Young, and Markman, JJ., concurred with KELLY, J.
MCL 750.520b(l)(a).
Generally, the punishment for CSC-I is imprisonment for any term of years or life. MCL 750.520b(2). When the trial court chooses to sentence a defendant to a term of years, it must fix both the minimum and maximum terms of the sentence. MCL 769.9(2). Here, the prosecutor requested a minimum term within the statutory guidelines recommendation. The request for a “lengthy tail” was a request for a high maximum term.
Because the judge referred to defendant’s status as a child-care provider, defendant argues that the judge violated MCL 769.34(3)(a). That statute prohibits a judge from exceeding the guidelines because of a defendant’s legal occupation. The record indicates that defendant was not legally-working as a child-care provider during the period in question. His wife was primarily responsible for the baby-sitting services they advertised, and the home was not licensed to provide child-care. We infer from the judge’s statements that he referred to the child-care position because defendant had exploited his position of trust as a child-care provider for the vulnerable victim. We conclude that the judge did not depart on the basis of defendant’s occupation.
People v Smith, unpublished opinion per curiam of the Court of Appeals, issued July 19, 2007 (Docket No. 267099).
Id. at 5-6.
Id. at 6.
Id.
480 Mich 1014 (2008).
People v Babcock, 469 Mich 247, 257-258; 666 NW2d 231 (2003).
Id.
Id. at 262.
Id. at 262-264.
MCL 769.34(3)(b).
Babcock, 469 Mich at 264.
Id.
Id. at 264-265.
Id. at 269.
MCL 769.34(7); MCR 2.517(A)(7).
Babcock, 469 Mich at 257-258.
Id. at 267 n 21, quoting former MCL 769.33(1)(e)(iv), which specified some of the duties at the former Sentencing Commission in connection with the sentencing guidelines as added by 1994 PA 445.
The judge also referred to defendant’s exploitation of the victim’s vulnerability as a basis for departure. However, this exploitation was, at least partially, already accounted for in the guidelines under offense variable 10 (OV 10). MCL 777.40. An offense characteristic taken into account in determining the sentencing range may not be a basis for departure unless the judge finds that the characteristic was given inadequate or disproportionate weight. MCL 769.34(3)(b).
The judge’s failure to address OV 10 leaves us unable to ascertain whether he believed the factor was given inadequate weight or whether he failed to recognize that the guidelines consider exploitation. We cannot discern whether the judge would have departed to the same degree had he referenced the offense variables, particularly OV 10, that arguably addressed some of the reasons cited for departure. This failure to address those variables is an additional basis for our remand for resentencing. See Babcock, 469 Mich at 260-261.
In her dissent, Justice Corrigan argues that this Court should infer that the judge considered the assessment of points for OV 10 and found the assessment inadequate. We disagree. The judge’s statement that the “guidelines didn’t calculate that,” referring in part to exploitation, implies that he failed to recognize that points are assessed under the guidelines for exploitation of victim vulnerability. Given this statement and the lack of any specific reference to OV 10, we will not infer that the judge concluded that OV 10 inadequately considered the factor of exploitation. Our conclusion is not the equivalent of requiring “magic words” for departure, as Justice Corrigan suggests. Post at 336. We are simply refusing to infer that the judge meant one thing when he suggested the opposite.
Babcock, 469 Mich at 259.
People v Hegwood, 465 Mich 432, 437 n 10; 636 NW2d 127 (2001) (emphasis in original).
Babcock, 469 Mich at 259.
Id. at 259 n 13.
Id. at 258-259.
Id. at 262.
Id.
Id. at 263.
Id. at 263-264.
Id. at 264.
Id.
MCL 777.16(y).
MCL 777.62.
The judge assessed 20 points for PRV 7 (subsequent and concurrent felonies) because, as a result of this case, defendant had two concurrent felony convictions. MCL 777.57(1)(a).
It appears that the judge erroneously assessed 50 points for OV 11. However, defendant admits that 50 points should have been assessed for OV 13 (continuing pattern of criminal behavior). Thus, a correction would not affect defendant’s OV score.
MCL 777.21(1)(c); MCL 777.62.
See MCL 777.62.
Id.
MCL 777.22(1) requires the court to score the following offense variables for all crimes against a person (maximum scores are in parentheses): OV 1 (aggravated use of a weapon) (25 points), MCL 777.31(1)(a); OV 2 (lethal potential of weapon) (15 points), MCL 777.32(1)(b); OV 3 (physical injury to victim) (100 points), MCL 777.33(1)(a); OV 4 (psychological injury to victim) (10 points), MCL 777.34(1)(a); OV 7 (aggravated physical abuse) (50 points), MCL 777.37(1)(a); OV 8 (asportation of victim) (15 points), MCL 777.38(1)(a); OV 9 (number of victims) (100 points), MCL 777.39(1)(a); OV 10 (15 points), MCL 777.40(1)(a); OV 11 (50 points), MCL 777.41(1)(a); OV 12 (contemporaneous felonious acts) (25 points), MCL 777.42(1)(a); OV 13 (50 points), MCL 777.43(1)(a); OV 14 (offender’s role) (10 points), MCL 777.44(41)(a); OV 19 (security threats or interference with justice) (25 points), MCL 777.49(1)(a); and OV 20 (terrorism) (100 points), MCL 777.49a(1)(a). Obviously, many of these variables could not be scored in this case or in most criminal sexual conduct cases. I list them to demonstrate that more than 100 points are possible under PRV level C.
Babcock, 469 Mich at 267 n 21, quoting former MCL 769.33(1)(e)(iv), as added by 1994 PA 445. The statutory sentencing guidelines are based on statewide sentencing data. They reflect the Legislature’s judgment about how the variables of mitigation and aggravation should be applied to reach a proportionate sentence. Accordingly, the sentencing grids provide an objective source of data on sentencing. The statutory guidelines, and the judicial guidelines that preceded them, were designed to avoid individual and regional variation in sentencing. Hence, using the grid as a reference point to assess and anchor a departure is an exercise well-designed to promote uniformity.
A departure cannot be justified on the sole basis that a crime is heinous. All criminal-sexual-conduct cases involving young children are heinous. Certainly the Legislature did not overlook this basic fact when establishing sentencing guidelines for these crimes.
Babcock, 469 Mich at 260 n 14.
Id. at 259 n 13.
Id. at 260.
See former MCL 769.33(1)(e)(iv), as added by 1994 PA 445. This provision was the part of the Code of Criminal Procedure that created the Sentencing Commission. The Legislature repealed the provisions in the code pertaining to the commission, including MCL 769.33(1)(e)(iv), after it enacted the sentencing guidelines. See 2002 PA 31. But the fact that it repealed the provision as part of the elimination of the Sentencing Commission does not mean that the Legislature abandoned its goal of uniformity in sentencing. Rather, it represents the fact that the Legislature concluded that the Sentencing Commission had done all that it could to further that goal.
MCL 769.34(2).
See MCL 769.34(3); Babcock, 469 Mich at 259-260.
Justice Corrigan is mistaken when she opines that, by requiring courts to justify the particular departure, we read into the statute something that is not there. The Legislature has required the trial court to state a substantial and compelling reason justifying the departure. MCL 769.34(3). Our opinion today merely provides guidance to trial courts on how they may formulate and articulate that justification. It is, in fact, our duty to give guidance to the bench and bar in such matters.
However, appellate courts may not review the record to search for reasons to uphold a sentence that the trial court failed to justify. Babcock, 469 Mich at 258-259.
See former MCL 769.33(1)(e)(iv), as added by 1994 PA 445. Justice Corrigan’s conclusion that the Legislature desired that a less stringent standard of uniformity pertain to departure sentences, post at 338, is incorrect. The Legislature permitted departures with the understanding that the guidelines could not account for all conceivable scenarios. However, that fact does not alter the overarching goal of uniformity in all sentencing. Rather, it constitutes the Legislature’s recognition that uniformity can be advanced only if departures from the guidelines are limited to cases involving unusual circumstances.
With respect to departures, we must determine whether the trial court abused its discretion in imposing the sentence by weighing whether the reasons given justify the departure. We ask whether the court imposed a sentence that is not proportionate to the offense and the offender and thereby abused its discretion. We would be derelict in our duly to advance the Legislature’s goal of uniform sentencing if we imposed a less stringent standard of review on sentences that are based on a departure.
Gall v United States, 552 US_; 128 S Ct 586; 169 L Ed 2d 445 (2007).
Id. at _; 128 S Ct at 591.
Id. at _; 128 S Ct at 594-595.
Id. at _; 128 S Ct at 595.
Id. at _; 128 S Ct at 595.
Id. at _; 128 S Ct at 594.
People v Buehler, 477 Mich 18, 24; 727 NW2d 127 (2007).
Babcock, 469 Mich at 257-258.
Gall, 552 US at _; 128 S Ct at 591.
Babcock, 469 Mich at 258-259.
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CORRIGAN, J.
In this case, we consider the assessment of attorney fees for “overdue” benefits under Michigan’s no-fault insurance statutes. MCL 500.3101 et seq. Under these statutes, personal protection insurance benefits become “overdue” when an insurer fails to pay “within 30 days after an insurer receives reasonable proof of the fact and of the amount of loss sustained.” MCL 500.3142(2). “An attorney is entitled to a reasonable fee for advising and representing a claimant in an action for personal. . . protection insurance benefits which are overdue.” MCL 500.3148(1). Moreover, “the attorney’s fee shall be a charge against the insurer ... if the court finds that the insurer unreasonably refused to pay the claim or unreasonably delayed in making proper payment.” Id. Therefore, whether a claimant’s benefits qualify as overdue and whether an insurer unreasonably refused to pay or unreasonably delayed in making payment determine if a claimant’s attorney may receive attorney fees.
In this case, a jury awarded plaintiff $50,000 in noneconomic damages and $42,755 in unpaid work loss benefits after defendant insurer stopped paying personal protection insurance benefits. The jury also awarded $98.71 in penalty interest for overdue work loss benefits. The trial court granted plaintiffs motion for attorney fees and costs, and the Court of Appeals affirmed.
Because the Court of Appeals erred in its interpretation of MCL 500.3142 and MCL 500.3148, we reverse. Because the jury awarded plaintiff only $98.71 in penalty interest and failed to award penalty interest on the $42,755 awarded in unpaid work loss benefits, we conclude that those benefits do not qualify as overdue pursuant to MCL 500.3142(2). We also conclude that the discontinuation of plaintiffs benefits was reasonable under MCL 500.3148(1). Because plaintiff offered no additional reasons to support the unreasonableness of defendant’s refusal to pay benefits, plaintiff is not entitled to attorney fees. Moreover, we reject the Court of Appeals erroneous statement that an insurer’s initial refusal to pay no-fault insurance benefits can be deemed unreasonable even though it is later determined that the insurer was not required to pay those benefits.
I. FACTS AND PROCEDURAL HISTORY
On September 27, 2000, a pickup truck struck the passenger side of plaintiff Hattie Moore’s automobile while she was driving on 1-475 in Genesee County. Because of the accident, plaintiff fractured her right knee, causing a bone chip. Before the accident, plaintiff had suffered from osteoarthritis in both knees, and she had been treated by an orthopedic surgeon, Dr. Norman Walter. According to Dr. Walter, in November 1999, 10 months before the accident, he discussed knee replacement surgery and injection treatments with plaintiff.
After the accident, plaintiff could not return to her regular employment as a custodian. Defendant began paying plaintiff work loss and other no-fault benefits in December 2000. Defendant first paid plaintiff in December 2000. Because of a computer glitch, however, defendant did not make its next payment to plaintiff until March 2001. Before the trial, defendant rectified its error, paying plaintiff the omitted payments as well as the 12 percent penalty interest that defendant owed. Dr. Walter recommended surgery on plaintiffs right knee to repair the injury caused by the accident. On January 22, 2001, Dr. Charles Xeller, a second orthopedic surgeon, performed an independent medical evaluation (IME) of plaintiff at defendant’s request. Dr. Xeller agreed that plaintiffs right knee required surgery, which Dr. Walter performed on January 26, 2001.
Following surgery, plaintiff remained off work and continued treatment with Dr. Walter. In March 2001, defendant retained Dan Schingeck, a nurse case manager, to evaluate whether plaintiff could return to work. Schingeck met with Dr. Walter on August 30, 2001. After their meeting, Dr. Walter opined that plaintiff would never be able to return to her normal employment as a custodian. Dr. Walter’s records do not reflect whether he attributed plaintiffs inability to work to her accident-related injuries or her preexisting osteoarthritis.
Defendant continued to pay work loss and other no-fault benefits until Dr. Xeller performed a second IME on September 25, 2001. After the second IME, Dr. Xeller prepared a seven page report for defendant. In his report, Dr. Xeller opined that plaintiff did not need further treatment for her orthopedic complaints related to the accident. Rather, he concluded that plaintiff had severe osteoarthritic degeneration in both knees that predated the accident, and that the accident had not exacerbated plaintiffs underlying osteoarthritis. Dr. Xeller determined that plaintiff could return to work with restrictions including, “no climbing, no walking on uneven ground, no kneeling or squatting, limited walking, and no overhead lifting.” Additionally, Dr. Xeller opined that plaintiff needed a total left knee replacement and possibly a total right knee replacement in the future.
In November 2001, defendant discontinued plaintiffs no-fault benefits because reasonable proof of plaintiffs claim no longer existed on the basis of Dr. Xeller’s report. Plaintiff filed suit, seeking first-party no-fault benefits from defendant. Plaintiff and her husband also filed a second suit seeking uninsured motorist benefits from defendant.
At trial, plaintiff sought approximately $96,000 in work loss benefits, $21,000 for household or replacement services, and more than $11,000 in penalty interest. The jury awarded plaintiff $42,755 in work loss benefits, no damages for household or replacement services, and only $98.71 in penalty interest for overdue payments. Plaintiff filed a postjudgment motion for no-fault attorney fees and costs under MCL 500.3148(1). After a hearing to determine attorney fees and costs, the trial court awarded plaintiff the full amount that she requested, $79,415.
Defendant appealed both the trial court’s decision to grant attorney fees and costs and the amount of attorney fees and costs awarded to plaintiff. In a divided opinion, the Court of Appeals affirmed the trial court’s award of $79,415 in attorney fees and costs. Relying on a definition of unreasonableness from Liddell v Detroit Automobile Inter-Ins Exch, 102 Mich App 636, 650; 302 NW2d 260 (1981), the Court concluded that “the trial court properly found the denial of benefits here unreasonable where defendant made no inquiry beyond the opinion of its own IME doctor.” The Court held that the defendant insurer owed overdue benefits and that the plaintiff satisfied conditions for attorney fees when “it was determined below that the denial of the benefits was unreasonable, and the jury found at least some of the benefit payments overdue.” The Court held that the trial court did not abuse its discretion “in awarding plaintiff $79,415 in attorney fees when the jury awarded plaintiff only $98.71 in penalty interest” because an insurer may “unreasonably refuse to pay benefits even if the insurer is later deemed not liable for them.”
Court of Appeals Judge KURTIS T. WILDER dissented. Judge WILDER reasoned that plaintiffs benefits were not overdue and, therefore, plaintiff had no claim for attorney fees “[u]nder the unambiguous language of MCL 500.3148(1).” Moreover, Judge WILDER concluded that, given the jury’s award of $98.71 in penalty interest, it necessarily determined that defendant unreasonably had delayed payment of only one week of work loss benefits. Judge WILDER further stated that, “[i]n my view, no part of the $79,415 in attorney fees and costs in this case was attributable to collecting the $822.52 overdue benefit, because that overdue benefit was paid long before litigation.” Therefore, Judge WILDER would have held “that the trial court erred as a matter of law in granting attorney fees, because the jury did not award overdue benefits to the plaintiff.” Defendant then applied for leave to appeal to this Court. We scheduled oral argument on the application and directed the parties to address:
(1) whether the benefits at issue were “overdue,” MCL 500.3148(1), 500.3142(2); (2) whether defendant “unreasonably refused to pay the claim or unreasonably delayed in making proper payment,” MCL 500.3148(1); (3) assuming defendant unreasonably refused to pay, but also assuming that only a portion of the benefits sought and awarded were “overdue,” whether MCL 500.3148(1) permits recovery of attorney fees for all benefits sought and recovered; and (4) whether the Court of Appeals erred in suggesting that “it is . . . possible for an insurer to unreasonably refuse to pay benefits even if the insurer is later deemed not liable for them.” [Moore v Secura Ins, 482 Mich 883 (2008).]
II. STANDARD OF REVIEW
The Court reviews de novo issues of statutory interpretation. Saffian v Simmons, 477 Mich 8, 12; 727 NW2d 132 (2007). “The trial court’s decision about whether the insurer acted reasonably involves a mixed question of law and fact. What constitutes reasonableness is a question of law, but whether the defendant’s denial of benefits is reasonable under the particular facts of the case is a question of fact.” Ross v Auto Club Group, 481 Mich 1, 7; 748 NW2d 552 (2008). This Court reviews de novo questions of law, but we review findings of fact for clear error. Id. “A decision is clearly erroneous when ‘the reviewing court is left with a definite and firm conviction that a mistake has been made.’ ” Id., quoting Kitchen v Kitchen, 474 Mich 654, 661-662; 641 NW2d 245 (2002). Moreover, we review a trial court’s award of attorney fees and costs for an abuse of discretion. Smith v Khouri, 481 Mich 519, 526; 751 NW2d 472 (2008). An abuse of discretion occurs when the trial court’s decision is outside the range of reasonable and principled outcomes. Id.
III. LEGAL ANALYSIS
A. OVERDUE BENEFITS
“When interpreting statutes, our primary goal is to give effect to the intent of the Legislature.” Nastal v Henderson & Assoc Investigations, Inc, 471 Mich 712, 720; 691 NW2d 1 (2005). We review the language of the statute itself and give the words used by the Legislature their common and ordinary meaning. Id. “If the statutory language is unambiguous, we must presume that the Legislature intended the meaning it clearly expressed and further construction is neither required nor permitted.” Id.
MCL 500.3148(1) establishes two prerequisites for the award of attorney fees. First, the benefits must be overdue, meaning “not paid within 30 days after [the] insurer receives reasonable proof of the fact and of the amount of loss sustained.” MCL 500.3142(2). Second, in postjudgment proceedings, the trial court must find that the insurer “unreasonably refused to pay the claim or unreasonably delayed in making proper payment.” MCL 500.3148(1). Therefore, assigning the words in MCL 500.3142 and MCL 500.3148 their common and ordinary meaning, “attorney fees are payable only on overdue benefits for which the insurer has unreasonably refused to pay or unreasonably delayed in paying.” Proudfoot v State Farm Mut Ins Co, 469 Mich 476, 485; 673 NW2d 739 (2003) (emphasis omitted).
In this case, the verdict form instructed jurors to award “12 percent interest per annum from the date that the expense or loss became overdue.” In contrast, the trial court’s jury instructions simply directed jurors to award 12 percent interest with no indication that the 12 percent interest should be “per annum.” Moreover, the trial court specifically instructed the jury that if plaintiff did not provide reasonable proof for her entire claim, then it must award interest for any pro rata portion for which plaintiff did supply reasonable proof. While plaintiff requested more than $11,000 in penalty interest, defendant requested that the jury award plaintiff only $121.50 in penalty interest. Instead of awarding the amount requested by either party, the jury awarded only $98.71 in penalty interest.
The jury’s decisions to award plaintiff $42,755 in unpaid work loss benefits, but only $98.71 in penalty interest, seems inconsistent because if the jury had determined that the work loss benefits owed were overdue, then the jury instructions mandated that it award 12 percent penalty interest on the full amount of overdue benefits, as required by MCL 500.3142(3). This Court will uphold a jury’s verdict, however, where “ ‘there is an interpretation of the evidence that provides a logical explanation for the findings of the jury.’ ” Bean v Directions Unlimited, Inc, 462 Mich 24, 31-32; 609 NW2d 567 (2000), quoting Granger v Fruehauf Corp, 429 Mich 1, 7; 412 NW2d 199 (1987).
The jury’s conclusion that plaintiff was owed work loss benefits did not also require it to conclude that those benefits were overdue. It may have concluded that the preexisting osteoarthritic degeneration in plaintiffs knees cast doubt on whether defendant had reasonable proof of plaintiffs accident-specific injuries, and, therefore, whether payments were due under MCL 500.3142(2). The jury also may have concluded that defendant should not be faulted for its computer glitch where plaintiff did not promptly notify defendant about the error. The jury’s award of $98.71 in penalty interest represents exactly 12 percent of one week of plaintiff s work loss benefits, which defendant calculated at $822.52. Thus, the jury decided that only one week of work loss benefits was overdue. Because there is an interpretation of the evidence that provides a logical explanation for the jury’s verdict, we uphold it.
MCL 500.3148(1) further provides that an attorney may only receive fees for representing a claimant in an action for “benefits which are overdue.” In MCL 500.3142(2), the Legislature explains that overdue benefits are those benefits “not paid within 30 days after an insurer receives reasonable proof of the fact and of the amount of loss sustained.” Neither MCL 500.3142(2) nor MCL 500.3148(1) permits the recovery of attorney fees for actions in which a court awarded plaintiff benefits that were reasonably in dispute, or, stated slightly differently, benefits not yet overdue.
In addition to being consistent with Judge WlLDER’s dissent, our view coincides with another Court of Appeals decision in which a jury refused to award penalty interest because benefits were not overdue under MCL 500.3142. Beach v State Farm Mut Automobile Ins Co, 216 Mich App 612; 550 NW2d 580 (1996). In Beach, the Court held that a jury’s decision that benefits were not overdue for purposes of MCL 500.3142 precluded the trial court from awarding attorney fees pursuant to MCL 500.3148(1) because a plaintiff is entitled to attorney fees only for overdue benefits. Id. at 630.
The Court of Appeals erred by failing to follow the unambiguous language of MCL 500.3142 and MCL 500.3148. In this case, despite instructions from the trial court and on the verdict form, the jury declined to award penalty interest on the $42,755 in unpaid work loss benefits that it awarded plaintiff. From its award of $98.71 in penalty interest, we conclude that the jury found that only one week of work loss benefits was overdue. Therefore, the jury must have found that the $42,755 in work loss benefits was not overdue under the plain meaning of MCL 500.3142 and MCL 500.3148. Because, as noted above, “ ‘there is an interpretation of the evidence that provides a logical explanation’ ” for this finding, Bean, supra at 31, quoting Granger, supra at 7, we agree with the jury’s conclusion that the $42,755 in work loss benefits was not overdue at the time of the trial.
B. UNREASONABLE REFUSAL OR DELAY
MCL 500.3148(1) provides in relevant part, “[t]he attorney’s fee shall be a charge against the insurer in addition to the benefits recovered, if the court finds that the insurer unreasonably refused to pay the claim or unreasonably delayed in making proper payment. ” The Court of Appeals recognized that an insurer’s refusal to pay benefits is not unreasonable “ ‘[i]f the insurer’s refusal or delay in payment is the product of a legitimate question of statutory construction, constitutional law, or a bona fide factual uncertainty.’ ” The Court traced its definition of “unreasonableness” to Liddell, supra at 650, in which the Court affirmed attorney fees under MCL 500.3148 “on the basis of the refusal of the defendant insurer to reconcile the opinion of one doctor that the plaintiffs injuries from an accident no longer precluded him from employment with the contradictory opinions of the plaintiffs treating physicians.” Comparing the facts of this case to the facts of Liddell, the Court reasoned, “[h]ere, as in Liddell, defendant insurer terminated plaintiffs work loss benefits without attempting to reconcile the opinions of its independent medical examiner and plaintiffs treating physicians.” The Court of Appeals concluded, “[u]nder these circumstances, the trial court did not clearly err in finding that defendant unreasonably terminated plaintiffs benefits . . . .”
We reject the Court of Appeals analysis of Liddell. In Liddell, the Court held that a trial court did not clearly err when it found an insurer’s conduct unreasonable where the insurer “did not attempt to contact” physicians with conflicting opinions “or in some other way attempt to ascertain the true situation in the face of contradictory reports.” Nothing in the plain language of MCL 500.3148(1), however, requires an insurer to reconcile conflicting medical opinions. Moreover, nothing otherwise implicit in the statute requires an insurer to reconcile competing medical opinions. Therefore, in accordance with the plain language of MCL 500.3148(1), we overrule Liddell.
The Court of Appeals erred in affirming the trial court’s finding that, because defendant knew that other doctors were involved in plaintiffs case, it was “incumbent upon the carrier to go beyond” defendant’s doctor and that the defendant insurer “could have sought further information before exercising the draconian termination of critical benefits for one who is injured.” The Court of Appeals misconstrued the plain language of MCL 500.3148(1) and thereby imposed additional duties on insurers beyond those duties already established in Michigan’s no-fault insurance statutes. We acknowledge that the trial court’s decision about whether an insurer acted reasonably presents a mixed question of law and fact. We hold that the trial court here erred as a matter of law.
The plain language of MCL 500.3101 et seq. does not impose an independent duty on insurers to “go beyond” the medical opinion of their physicians and the IMEs that those physicians perform. Instead, “[t]he determinative factor in our inquiry is not whether the insurer ultimately is held responsible for benefits, but whether its initial refusal to pay was unreasonable.” To determine whether the initial refusal to pay was unreasonable, the trial court must give effect to the unambiguous language of MCL 500.3148(1). MCL 500.3148(1) requires that the trial court engage in a fact-specific inquiry to determine whether “the insurer unreasonably refused to pay the claim or unreasonably delayed in making proper payment.”
We conclude that an insurer need not resort to a “tie breaker” to resolve conflicting medical reports, but we note that an insurer acts at its own risk in terminating benefits in the face of conflicting medical reports. Here, however, defendant’s decision not to seek out another physician to prepare yet another IME in order to reconcile the conflicting opinions of Dr. Walter and Dr. Xeller was not unreasonable under the fact-specific inquiry mandated by MCL 500.3148. MCL 500.3142(2) provides in relevant part: “ [i]f reasonable proof is not supplied as to the entire claim, the amount supported by reasonable proof is overdue if not paid within 30 days after proof is received by the insurer.” Under the plain language of the statute, the claimant shoulders the initial burden to supply reasonable proof of her entire claim, or reasonable proof for some portion thereof. When the claimant provides such evidence, the insurer then must evaluate that evidence as well as evidence supplied by the insurer’s doctor before making a reasonable decision regarding whether to provide the benefits sought.
We reject the trial court’s conclusion that the defendant insurer must “go beyond” defendant’s doctor or IME. We hold that the Court of Appeals erred in affirming the trial court’s ruling that defendant unreasonably terminated plaintiffs benefits. Under the unambiguous language of MCL 500.3148(1) and MCL 500.3142(2), defendant’s decision to discontinue plaintiffs benefits in light of a legitimate factual uncertainty was reasonable.
C. ATTORNEY FEES
In Proudfoot, supra at 485, this Court held that “attorney fees are payable only on overdue benefits for which the insurer has unreasonably refused to pay or unreasonably delayed in paying.” (Emphasis omitted.) MCL 500.3148(1) provides in relevant part, “[t]he attorney’s fee shall be a charge against the insurer in addition to the benefits recovered, if the court finds that the insurer unreasonably refused to pay the claim or unreasonably delayed in making proper payment.”
In this case, the jury found that $822.52, or only one week of plaintiffs unpaid work loss benefits, were overdue. Generally, plaintiffs attorney would be entitled to attorney fees incurred to collect those overdue benefits. Here, however, before plaintiffs suit went to trial, defendant already had paid plaintiff $822.52 for one week of work loss benefits and all other payments that defendant owed as a result of the computer glitch. Because plaintiff did not attribute any of the $79,415 that the trial court awarded her in attorney fees and costs to collecting $822.52 in overdue work loss benefits, plaintiff is not entitled to attorney fees.
Moreover, because, as shown above, defendant did not unreasonably refuse to pay work loss benefits, plaintiff is not entitled to attorney fees incurred to collect the $42,755 awarded by the jury. Our review of the lower court record reveals that plaintiff proffered only one reason that defendant’s refusal to pay benefits was unreasonable under MCL 500.3148(1). Specifically, during the hearing on plaintiffs motion for attorney fees, plaintiffs counsel argued that defendant unreasonably discontinued benefits solely because of defendant’s reliance on the second IME performed by Dr. Xeller. Related to his broader argument, plaintiffs counsel faulted defendant for not sharing Dr. Xeller’s IME with plaintiffs other physicians, not asking plaintiffs other physicians if they agreed with Dr. Xeller’s second IME, and not educating themselves about osteoarthritis. To further buttress his argument, plaintiff s counsel relied on Liddell for the proposition that defendant must reasonably evaluate plaintiffs medical condition.
As previously discussed, however, defendant’s reliance on Dr. Xeller’s second IME was not unreasonable under the plain language of MCL 500.3148(1). Forcing defendant to “go beyond” what the unambiguous statutory language mandates would effectively require it to shoulder plaintiffs initial burden pursuant to MCL 500.3142(2). Further, this Court already has concluded that the Court of Appeals misconstrued Liddell and, therefore, that Court’s reading of Liddell is inapplicable. Moreover, even if we had not overruled Liddell and the case were applicable, we note that defendant here did significantly more than the insurer in that case, including requesting two separate IMEs and hiring a nurse case manager to investigate whether plaintiff could return to work.
Because plaintiff did not attribute any of the $79,415 that the trial court awarded her in attorney fees and costs to collecting the $822.52 in overdue work loss benefits as determined by the jury’s penalty interest award, and because there is no evidence in the lower court record that defendant’s refusal to pay benefits was unreasonable, plaintiff is not entitled to any attorney fees under MCL 500.3148(1).
D. ERRONEOUS STATEMENT OF LAW
The Court of Appeals majority erred by relying on McCarthy v Auto Club Ins Ass’n, 208 Mich App 97; 527 NW2d 524 (1994), for the proposition that “[i]t is ... possible for an insurer to unreasonably refuse to pay benefits even if the insurer is later deemed not liable for them.” In actuality, the McCarthy Court addressed the inverse proposition, namely, that “the scope of inquiry under [MCL 500.3148] is not whether the insurer ultimately is held responsible for a given expense, but whether its initial refusal to pay the expense was unreasonable.” McCarthy, supra at 105. Otherwise stated, an insurer’s initial refusal to pay benefits under Michigan’s no-fault insurance statutes can be deemed reasonable even though it is later determined that the insurer was required to pay those benefits.
We recently affirmed the proposition expressed in McCarthy that an insurer’s initial refusal to pay no-fault benefits can be deemed reasonable even if it is later determined that the insurer was required to pay those benefits. Ross, supra at 11. This Court’s statement in Ross and the Court’s statement in McCarthy, however, do not permit us to assume that the inverse proposition as expressed by the Court of Appeals is similarly correct. Nothing in our jurisprudence suggests that an insurer’s initial refusal to pay no-fault insurance benefits can be deemed unreasonable, even though it is later determined that the insurer did not owe those benefits. The Court of Appeals proposition effectively penalizes an insurer for refusing to pay benefits that the insurer had no obligation to pay. In contrast, we conclude that if an insurer does not owe benefits, then benefits cannot be overdue. Therefore, before a court may award attorney fees, benefits must be overdue, and an insurer must have unreasonably refused to pay the claim or delayed in payment.
Accordingly, we reject the Court of Appeals statement that “it is . .. possible for an insurer to unreasonably refuse to pay benefits even if the insurer is later deemed not liable for them.” Moore, supra at 204.
IV CONCLUSION
If an insurer’s payment does not qualify as overdue, a claimant’s attorney may not receive attorney fees under Michigan’s no-fault insurance statutes. MCL 500.3101 et seq. In this case, the Court of Appeals failed to give effect to the clearly expressed intent of the Legislature in MCL 500.3142 and MCL 500.3148. Because the jury awarded plaintiff only $98.71 in penalty interest and failed to award penalty interest on the $42,755 that it awarded in unpaid work loss benefits, we conclude that those benefits do not qualify as overdue pursuant to MCL 500.3142(2). Moreover, defendant’s act of discontinuing plaintiff’s benefits did not constitute either an unreasonable refusal to pay or unreasonable delay under MCL 500.3148(1). Because plaintiff offered no additional reasons to support the unreasonableness of defendant’s refusal to pay benefits, plaintiff is not entitled to attorney fees. Finally, we reject the Court of Appeals erroneous statement that an insurer’s initial refusal to pay no-fault insurance benefits can be deemed unreasonable even though it is later determined that the insurer was not required to pay those benefits.
Accordingly, we reverse the Court of Appeals and remand for further proceedings consistent with our opinion.
TAYLOR, C.J., and Young and MArkman, JJ., concurred with Corrigan, J.
CAVANAGH, J., did not participate because of a familial relationship with counsel for Secura Insurance.
The relevant statutory provisions of MCL 500.3101 et seq. provide:
MCL 500.3142:
(1) Personal protection insurance benefits are payable as loss accrues.
(2) Personal protection insurance benefits are overdue if not paid within 30 days after an insurer receives reasonable proof of the fact and of the amount of loss sustained. If reasonable proof is not supplied as to the entire claim, the amount supported by reasonable proof is overdue if not paid within 30 days after the proof is received by the insurer. Any part of the remainder of the claim that is later supported by reasonable proof is overdue if not paid within 30 days after the proof is received by the insurer. For the purpose of calculating the extent to which benefits are overdue, payment shall be treated as made on the date a draft or other valid instrument was placed in the United States mail in a properly addressed, postpaid envelope, or, if not so posted, on the date of delivery.
(3) An overdue payment bears simple interest at the rate of 12% per annum.
MCL 500.3148:
(1) An attorney is entitled to a reasonable fee for advising and representing a claimant in an action for personal or property protection insurance benefits which are overdue. The attorney’s fee shall be a charge against the insurer in addition to the benefits recovered, if the court finds that the insurer unreasonably refused to pay the claim or unreasonably delayed in making proper payment.
(2) An insurer may be allowed by a court an award of a reasonable sum against a claimant as an attorney’s fee for the insurer’s attorney in defense against a claim that was in some respect fraudulent or so excessive as to have no reasonable foundation. To the extent that personal or property protection insurance benefits are then due or thereafter come due to the claimant because of loss resulting from the injury on which the claim is based, such a fee may be treated as an offset against such benefits; also, judgment may be entered against the claimant for any amount of a fee awarded against him and not offset in this way or otherwise paid.
Moore v Secura Ins, 276 Mich App 195; 741 NW2d 38 (2007).
Moore, supra at 202.
Id.
Id. at 203-204.
Id. at 205.
Id. at 208-209.
Id. at 209.
Id. at 214.
Id. at 215.
As Judge Wilder notes in his dissent, $98.71 is 12 percent of $822.52, and $822.52 represents the one week of delayed work loss benefits for which plaintiff provided reasonable proof. Moore, supra at 209.
Moore, supra at 205-215.
Moore, supra at 199, quoting Beach, supra at 629.
Moore, supra at 200.
Id. at 201.
Liddell, supra at 651.
Moore, supra at 200.
Ross, supra at 7 (“What constitutes reasonableness is a question of law, but whether the defendant’s denial of benefits is reasonable under the particular facts of the case is a question of fact.”).
Id. at 11.
Id. (“Accordingly, an insurer’s refusal or delay places a burden on the insurer to justify its refusal or delay. The insurer can meet this burden by showing that the refusal or delay is the product of a legitimate question of statutory construction, constitutional law, or factual uncertainty.”)
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YOUNG, J.
The issue in this case is whether the circuit court abused its discretion when it issued a prehminary injunction preventing defendant city of Pontiac from implementing its plan to reduce a budget shortfall by laying off members of plaintiff Pontiac Fire Fighters Union Local 376. We hold that the circuit court abused its discretion. Plaintiff failed to meet its burden of establishing that irreparable harm would result if the injunction did not issue, and even supposing plaintiff satisfied its initial burden, it failed to carry its burden in hght of defendant’s contrary proffered evidence. Accordingly, we reverse the Court of Appeals and vacate the circuit court order granting the prehminary injunction.
FACTS AND PROCEDURAL HISTORY
Plaintiff and defendant are parties to a collective bargaining agreement (CBA) that was in effect from June 1, 2002, to June 30, 2004. Although the parties did not agree to a new CBA when that agreement expired, the existing agreement continued to govern the parties’ relationship after June 30, 2004, because under its own terms the agreement was automatically extended until a new contract was negotiated or ordered.
In 2005 and 2006, defendant faced serious budget shortfalls that it sought to address in part by laying off 28 firefighters. Plaintiff maintained that the layoff plan and the manner in which defendant intended to implement it violated the terms of the CBA and constituted an unfair labor practice.
On June 16, 2006, plaintiff filed a verified complaint in the Oakland Circuit Court seeking a preliminary injunction against defendant’s proposed layoffs pending the resolution of an unfair labor practice charge, collective bargaining, or interest arbitration. Several days earlier, plaintiff had filed an unfair labor practice charge against defendant with the Michigan Employment Relations Commission (MERC). The verified complaint alleged that the proposed layoffs would necessitate a dramatic reorganization of the fire department and that this reorganization threatened firefighter safety. Specifically, plaintiff alleged that the layoffs would increase response time to a fire emergency, which would allegedly allow fires to escalate, making them more difficult and more dangerous to extinguish. Moreover, plaintiff claimed that this problem would be compounded by the smaller number of firefighters present at the scene of a fire.
The circuit court ordered defendant to show cause why the injunction should not be granted. On June 28, 2006, the court conducted a hearing on the prehminary injunction. However, the court took no witness testimony at the hearing. Plaintiff relied on the assertions in its verified complaint, and defendant submitted several affidavits to counter plaintiffs allegations. One affidavit particularly pertinent to this case was submitted by the chief of the Pontiac Fire Department, Wilburt McAdams.
In his affidavit, McAdams addressed many of plaintiffs allegations that the proposed layoffs threatened firefighter safety. The affidavit noted that the “great majority” of calls received by the fire department are medical runs rather than fire runs. McAdams contended that minimum staffing levels would be maintained at all times and that in the event staffing reached critically low levels, firefighters would only respond to fires and not medical runs, which would be handled by private ambulance services.
McAdams further averred that firefighter safety at the site of a fire would not be jeopardized by the layoffs. The department’s remaining 89 firefighters would continue to adhere to basic safety protocols such as the “incident command system” and the “two in, two out” rule. Moreover, the affidavit asserted that the number of firefighters at the scene of a fire would be unaffected. McAdams claimed that the number of firefighters on each rig would actually increase from three or four to four firefighters. Finally, McAdams averred that the fire department would continue to follow all state and local workplace safety rules and regulations and it would continue to participate in mutual aid programs where nearby communities would lend their firefighters if assistance were required.
In a written opinion issued on June 30, 2006, the circuit court granted the preliminary injunction after ruling that plaintiff satisfied the four traditional elements for injunctive relief. The court found that both the laid-off firefighters and those who would remain faced a threat of significant, irreparable harm in the absence of injunctive relief. With respect to the laid-off firefighters, the court found that they would “los[e] their jobs, salary and benefits and create a current hardship that cannot be compensated even if a subsequent arbitration decision would award those laid off a reinstatement of their positions and back wages.” As to the remaining firefighters, the court found that they
may be irreparably harmed since a reduction in the workforce and the closing of several City fire stations would result in a significant increased risk of harm for the remaining firefighters. Fewer firefighters would be available to respond to fires and the closing of stations caused by the [layoff] would result in the firefighters having to cover a larger territory. The remaining firefighters would thus not be able to respond as quickly as they used to[,] which means that they would be faced with fires that have increased in intensity or size and as a result are more dangerous.
Defendant appealed the circuit court’s order to the Court of Appeals, which upheld the preliminary injunction in a split, unpublished decision. The majority held that the trial court did not abuse its discretion when it granted the injunction, particularly its findings that plaintiff would suffer irreparable harm and that plaintiff demonstrated a likelihood of success on the merits. The dissenting member of the panel argued that the trial court abused its discretion because plaintiff did not meet its burden of demonstrating irreparable harm. With respect to the laid-off firefighters, the dissent noted that injunctive relief was inappropriate to remedy economic injuries. With respect to the remaining firefighters, the dissent observed that in view of defendant’s proffered evidence that the layoffs would not jeopardize firefighter safety, the record did not support the trial court’s conclusion to the contrary.
Defendant filed an application with this Court seeking leave to appeal, which we granted.
STANDARD OF REVIEW
We review a trial court’s decision to grant injunctive relief for an abuse of discretion. We have recently offered the following articulation of the abuse of discretion standard. There are circumstances where a trial court must decide a matter and there will be no single correct outcome; rather, there may be more than one reasonable and principled outcome. The trial court abuses its discretion when its decision falls outside this range of principled outcomes.
ANALYSIS
The Court of Appeals has succinctly stated that “ ‘[i]njunctive relief is an extraordinary remedy that issues only when justice requires, there is no adequate remedy at law, and there exists a real and imminent danger of irreparable injury.’ ” In the context of labor disputes, this Court has observed that “it is basically contrary to public policy in this State to issue injunctions in labor disputes absent a showing of violence, irreparable injury, or breach of the peace.” This Court recently reiterated the longstanding principle that “a particularized showing of irreparable harm ... is... an indispensable requirement to obtain a preliminary injunction.” The mere apprehension of future injury or damage cannot be the basis for injunctive relief. Equally important is that a preliminary injunction should not issue where an adequate legal remedy is available.
MCR 3.310 governs the procedure for issuing a preliminary injunction. According to MCR 3.310(A)(1), unless otherwise provided by statute or court rule, an injunction may not be granted without a hearing. At this hearing, “the party seeking injunctive relief has the burden of establishing that a preliminary injunction should be issued ____” If a court grants preliminary injunctive relief, a trial on the merits must be held within six months of the injunction issuing, except for good cause or a stipulation from the parties to extend the time. Given the extraordinary nature of injunctive relief, our court rules contemplate expeditious resolution of the underlying claim or claims once a preliminary injunction issues.
With these general precepts in mind, we must consider whether the circuit court abused its discretion when it granted plaintiffs motion for preliminary injunction. The first half of the circuit court’s irreparable-harm analysis centered on its belief that the layoffs would inflict considerable financial hardship on the laid-off firefighters. We agree with the Court of Appeals dissent that this alleged injury is not irreparable and not the proper subject of injunctive relief. There exists an adequate legal remedy for laid-off firefighters. If the layoffs violated the CBA or constituted an unfair labor practice, MERC or a grievance arbitrator can award back pay, order reinstatement, or provide another remedy to make the laid-off firefighters whole. Granting extraordinary equitable relief to remedy these economic injuries is unnecessary and inappropriate because they can be remedied by damages at law.
In the second half of its irreparable-harm analysis, the circuit court found that the layoffs would deplete the number of available firefighters, which would increase the remaining firefighters’ workload and lengthen their response time, which in turn would require firefighters to fight larger, more intense, and more dangerous fires. Thus, firefighter safety would be jeopardized. To support this chain of logic, the circuit court appeared to adopt without reservation plaintiffs factual assertions.
However, while plaintiffs argument that staffing decisions might affect firefighter safety is appealing as a general proposition, upon closer scrutiny, plaintiff alleged nothing more than an apprehension of future injury or damage. Indeed, the circuit court could only speculate that the firefighters “may” have been irreparably harmed by the layoffs. Neither plaintiff nor the circuit court detailed how the remaining firefighters faced real and imminent danger from the layoffs rather than future, speculative harm. Under established principles governing injunctive relief, plaintiffs verified complaint, standing alone, failed to make a particularized showing of irreparable harm. Thus, plaintiff failed to carry its burden of proof from the outset.
In reaching this conclusion, we do not trivialize the dangers accompanying firefighting. However, because firefighting is a dangerous job, every managerial decision in the abstract might touch on a safety issue. A mere apprehension of reduced safety by the union is insufficient grounds for a court to grant equitable relief. Otherwise, the extraordinary nature of a preliminary injunction would be trivialized. Plaintiff bears the responsibility of submitting sufficiently persuasive evidence that particular, irreparable harm will result if an injunction does not issue.
Further, even if we assumed arguendo that plaintiff initially succeeded in demonstrating particularized, irreparable harm, it failed to carry its burden of proof in the face of contrary evidence submitted by defendant that specifically refuted plaintiffs allegations. For instance, in response to plaintiffs allegation that the number of firefighter personnel at a fire scene would be limited and reduced to unsafe levels, Fire Chief McAdams stated that the number of firefighters present at a fire would not be reduced by the layoffs and that the number of firefighters in each rig would increase from three or four to four. And McAdams averred that additional, outside support was available, if needed. For instance, because the “great majority” of calls to which the fire department responded were medical runs, private ambulance services, rather than firefighters, would be used to respond to those calls if the department was functioning at its minimum daily staffing level. Thus, the firefighters would remain available to fight fires. Also, because the department participated in mutual aid programs with the fire departments of neighboring communities, additional firefighters from other communities could be called on for assistance. Moreover, safety protocols, such as the “two in, two out” rule and the incident command system, would remain in place at the scene of every fire. Defendant submitted evidence that it would maintain the same number of firefighters at the scene of a fire, would retain existing policies to protect the health and safety of firefighters, and would use outside resources to ensure that a minimally staffed fire department did not overburden firefighters with medical runs at the expense of fighting fires. Simply put, plaintiffs nonspecific allegations of irreparable harm were refuted by the more specific, sworn statements in Fire Chief McAdams’s affidavit.
In the face of this conflicting evidence that blunted the force of plaintiffs safety allegations, it behooved plaintiff to do more than rely on its initial factual allegations. Plaintiff did not do so. Thus, for this additional reason, it failed to carry its burden of demonstrating irreparable harm under MCR 3.310(A).
We are not second-guessing the circuit court’s discretion to substitute the outcome we prefer. For reasons that are unclear, the circuit court in its written opinion granting the preliminary injunction seemed to credit only plaintiffs allegations and did not at all consider defendant’s contrary evidence. Plaintiff failed to carry its burden of proof to make a particularized showing of irreparable harm and also failed to maintain this showing in the face of defendant’s contrary evidence. A grant of a preliminary injunction under these circumstances falls outside the principled range of outcomes. Thus, the circuit court abused its discretion when it granted the injunction. Accordingly, we reverse the Court of Appeals and vacate the circuit court order.
Reversed; preliminary injunction vacated.
TAYLOR, C.J., and CORRIGAN and MARKMAN, JJ., concurred with Young, J.
Article VII, Section 12 of the CBA provided: “This Agreement shall remain in full force and effect from July 1, 2002 through June 30, 2004, and it shall he extended automatically thereafter on a daily basis until a new contract is negotiated or ordered.”
Plaintiff relied on Article EX, Section 7.D.4 of the CBA, which provided in pertinent part that “[djuring the duration of the Agreement, there will be no layoff of bargaining unit personnel....” Defendant relied on other portions of the CBA that seemed to presume that defendant could lay off union members. For instance, Article EX, Section 9 set forth advance notice requirements for layoffs such as “[i]f workers are to be laid off, a fourteen (14) day notice shall be given of the date when their services shall no longer be required.”
The complaint alleged four counts: (1) breach of the CBA; (2) unfair labor practice for failure to bargain under the public employment relations act (PERA); (3) city charter violation; and (4) health and safety violation.
According to the affidavit, the incident command system prohibits a firefighter from entering a burning structure unless, after a careful assessment of the fire, an incident commander permits entry.
According to the affidavit, under this rule, a firefighter cannot enter a structure that is on fire without being accompanied by another firefighter and two firefighters remain stationed outside the structure.
In Michigan Coalition of State Employees Unions v Civil Service Comm, 465 Mich 212, 225 n 11; 634 NW2d 692 (2001), this Court noted that besides the demonstration of irreparable harm, the three additional factors in a preliminary injunction analysis are (1) whether harm to the applicant absent such an injunction outweighs the harm it would cause to the adverse party, (2) the strength of the moving party’s showing that it is likely to prevail on the merits, and (3) harm to the public interest if an injunction is issued.
With respect to these three remaining factors, the circuit court in the present case concluded (1) that the balance of harm favored plaintiff notwithstanding defendant’s financial difficulties, (2) that plaintiff demonstrated a substantial likelihood of success on the merits, and (3) that the public faced less harm if the injunction issued than if it did not.
Pontiac Fire Fighters Union Local 376 v City of Pontiac, unpublished opinion per curiam of the Court of Appeals, issued November 30, 2006 (Docket No. 271497).
478 Mich 903 (2007). The grant order asked the parties to address
(1) whether the circuit court had jurisdiction to grant a preliminary injunction with respect to the breach of contract claim (count 1) and the unfair labor practice claim (count II), and (2) if the circuit court had jurisdiction: (a) whether it abused its discretion in issuing an injunction to prevent layoffs based on alleged irreparable harm to the laid-off employees; (b) whether the plaintiff presented sufficient evidence to support its claim of an increased risk of harm to the firefighters who would not be laid off; and (c) whether the plaintiff is likely to prevail on its breach of contract and unfair labor practice claims.
With respect to the first question in our grant order, we agree with the parties that the trial court has jurisdiction to issue an injunction in aid of MERC’s jurisdiction to decide unfair labor practice charges. MCL 423.216(h).
Michigan Coalition, 465 Mich at 217.
Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
Id.
Kernen v Homestead Dev Co, 232 Mich App 503, 509; 591 NW2d 369 (1998), quoting Jeffrey v Clinton Twp, 195 Mich App 260, 263-264; 489 NW2d 211 (1992).
Holland School Dist v Holland Ed Ass’n, 380 Mich 314, 326; 157 NW2d 206 (1968).
Michigan Coalition, 465 Mich at 225-226.
Fenestra Inc v Gulf American Land Corp, 377 Mich 565, 601-602; 141 NW2d 36 (1966); Dunlap v City of Southfield, 54 Mich App 398, 403; 221 NW2d 237 (1974) (“[l]t is well settled that an injunction will not lie upon the mere apprehension of future injury or where the threatened injury is speculative or conjectural.”). See also Royal Oak School Dist v State Tenure Comm, 367 Mich 689, 693; 117 NW2d 181 (1962) (injunctive relief inappropriate where there is no proof that the party would suffer irreparable injury).
Grand Rapids Electric R Co v Calhoun Circuit Judge, 156 Mich 419, 422; 120 NW 1004 (1909).
MCR 3.310(A)(4).
MCR 3.310(A)(5).
See, e.g., MCL 423.216(b).
Thermatool Corp v Borzym, 227 Mich App 366, 377; 575 NW2d 334 (1998). Plaintiff relies on this Court’s dictum in Michigan State Employees Ass’n v Dep’t of Mental Health, 421 Mich 152, 168; 365 NW2d 93 (1984), that “[w]e do not hold that the absence of usable resources and of obtainable alternative sources of income with which to support one’s self and one’s dependents, coupled with the prospect of destitution, serious physical harm, or loss of irreplaceable treasured possessions, could never support a finding of irreparable injury in aui appropriate case.” We doubt whether the Michigan State Employees Ass’n Court was correct that this is an adequate basis to support a finding of irreparable injury, but, in any event, the record in this case does not support plaintiffs reliance on it.
The trial court ruled, and the Court of Appeals majority agreed, that plaintiff demonstrated a likelihood of success on the merits of its underlying claims. Because plaintiff failed to prove that it would suffer irreparable harm from the layoffs, we take no position on whether plaintiffs could successfully prove a breach of the CBA or an unfair labor practice. | [
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TAYLOR, C.J.
In this case, the Court is called on to examine the doctrine of “lost opportunity” set forth in MCL 600.2912a(2), which prohibits recovery for the loss of an opportunity to survive or achieve a better result unless the opportunity was greater than 50 percent, and the construction of that statute in Fulton v William Beaumont Hosp, 253 Mich App 70; 655 NW2d 569 (2002). The Court of Appeals in this case considered the aggregate of complications plaintiff faced and concluded that plaintiff satisfied the statute, using Fulton’s requirement that the difference between his chance of a better result without malpractice and his chance of a better result despite the alleged malpractice was greater than 50 percentage points. I conclude that the second sentence of MCL 600.2912a(2) does not apply to this case. Moreover, I believe the second sentence is unenforceable because it provides no guidance regarding its meaning or how courts are to apply it. A medical-malpractice plaintiff must prove that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant. Because the evidence presented at trial would support the jury’s verdict under my analysis, I conclude that there is no need to conduct a new trial and would therefore affirm the result of the Court of Appeals judgment but not its analysis.
I. FACTS AND PROCEEDINGS
Plaintiff suffered the rupture of an abdominal aortic aneurysm that had gone undetected despite physical examinations and testing by a number of physicians. He underwent emergency surgery to repair the rupture, but, in part because of preexisting conditions, amputation of both legs at mid-thigh was ultimately necessary. After surgery, plaintiff continued to experience multiple organ failure and other complications, including acute renal failure, sepsis, rhabdomyolysis, osteomyelitis, recurrent pancreatitis, and depression. His home required structural changes to accommodate his wheelchair and specialized needs, and his wife quit her employment to assist with his daily care needs.
Plaintiff brought a medical-malpractice suit against the radiologist and two vicariously liable entities on the theory that a negligent diagnosis resulted in the rupture and all resulting harm. At the jury trial, plaintiff presented experts who testified that, had the aneurysm been properly diagnosed, elective surgery could have been performed. Such elective surgery would have greatly increased plaintiffs chance of a better medical outcome, including a reduction of the risk of amputation and other health complications. Plaintiffs medical experts testified that a patient having elective surgery to repair an aortic aneurysm has a 95 percent chance of attaining a good result, which includes surviving the rupture, as well as avoiding additional medical complications. In contrast, misdiagnosed patients whose aneurysms rupture have only a 10 percent chance to achieve a good result. Specifically, the experts opined that 80 percent of patients with a rupture of an aortic aneurysm die, either en route to obtain medical care or during the emergency surgery. Of the 20 percent of patients with ruptures who manage to survive, 40 to 50 percent have some form of complication. This contrasts markedly with those undergoing elective repair, who face less than a 5 percent risk of dying or suffering serious complications.
Defendants argued that the risk of death should be factored out because plaintiff avoided it and that the risk of complications other than death was 5 to 12 percent for elective surgery and up to 40 percent for emergency surgery. Taking the numbers most favorable to plaintiff, 5 and 40, defendants argued that the difference was at best 35 percent. The specific risk of amputation suffered by plaintiff was 1 percent for elective surgery and 5 percent for emergency surgery: a paltry difference of 4 percent. The trial court disagreed with defendants’ theory, however, and instructed the jury to consider the aggregate risk of complications.
The jury returned a verdict in favor of plaintiff for a total amount of $2,327,835. Following reduction for the damages cap and collateral sources, the court entered a judgment in the amount of $1,936,682, of which $1,640,800 was for the verdict and the remainder was for interest, costs, and attorney fees. The trial court denied defendants’ postjudgment motions for a new trial and judgment notwithstanding the verdict.
The Court of Appeals affirmed in an unpublished opinion per curiam, issued April 17, 2007 (Docket No. 265048). On the issue of “loss of opportunity,” it agreed with the trial court that plaintiff had met the requirements of the statute because he had gone from a 95 percent chance of attaining a good result to a 10 percent chance of attaining a good result. Id. at 5. The Court considered the aggregate of all the increased risks that plaintiff faced as a result of the alleged malpractice and applied the Fulton formula to that aggregate risk.
This Court granted leave to appeal, directing the parties to address
(1) whether the requirements set forth in the second sentence of MCL 600.2912a(2) apply in this case; (2) if so, whether the “loss of an opportunity to survive or an opportunity to achieve a better result” should be determined by considering the aggregate increased risk posed by the alleged malpractice, including risks associated with injuries that the patient did not suffer and any increased risk of death, or whether the only consideration should be the increased risk of the specific injury or injuries suffered by the patient; (3) whether Fulton v William Beaumont Hosp, 253 Mich App 70 (2002), was correctly decided, or whether a different approach is required to correctly implement the second sentence of § 2912a(2), such as that described in Roy W Waddell, M.D.’s A Doctor’s View of Opportunity to Survive: Fulton’s Assumptions and Math are Wrong, published in the March 2007 edition of the Michigan Bar Journal at 32; and (4) whether the Court of Appeals erred when it determined that the plaintiffs met the requirements of § 2912a(2). [480 Mich 895 (2007).]
II. STANDARD OP REVIEW
This Court reviews de novo a trial court’s decision on a motion for judgment notwithstanding the verdict, viewing the evidence and all legitimate inferences in the light most favorable to the nonmoving party. Sniecinski v Blue Cross & Blue Shield of Michigan, 469 Mich 124, 131; 666 NW2d 186 (2003). Similarly, we review de novo questions of statutory interpretation. Wickens v Oakwood Healthcare Sys, 465 Mich 53, 59; 631 NW2d 686 (2001). When interpreting a statute, the Court’s primary goal is to give effect to the intent of the Legislature. Brown v Detroit Mayor, 478 Mich 589, 593; 734 NW2d 514 (2007). The first step is to review the language of the statute. Id. If the statute is unambiguous on its face, we presume that the Legislature intended the meaning expressed, and judicial construction is neither required nor permissible. Id. However, when a statute is ambiguous on its face — that is, equally susceptible to more than a single meaning — judicial construction is appropriate to determine the meaning. Lansing Mayor v Pub Service Comm, 470 Mich 154, 164-166; 680 NW2d 840 (2004).
III. ANALYSIS
At issue in this case is subsection 2 of MCL 600.2912a, which reads:
In an action alleging medical malpractice, the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants. In an action alleging medical malpractice, the plaintiff cannot recover for loss of an opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than 50%. [MCL 600.2912a(2).][ ]
Although the lower courts did not question the applicability of the second sentence of MCL 600.2912a(2) to plaintiffs claim, treating it as one for loss of opportunity, this Court expressly requested the parties to address the issue. Plaintiff argues that he never pleaded his claim as one for loss of an opportunity; instead, his is a simple case of physical injury directly caused by negligence. In his brief, he asserts that a case involving a loss of opportunity occurs in very specific circumstances: “where a plaintiff cannot prove that the defendant’s acts or omissions proximately caused his injuries, but can prove that the defendant’s acts or omissions deprived him of some chance to avoid those injuries.”
This definition is in accord with Michigan caselaw. In the first Michigan case to refer to the legal theory of “the value of lost chance,” the Court of Appeals explained: “This theory is potentially available in situations where a plaintiff cannot prove that a defendant’s actions were the cause of his injuries, but can prove that the defendant’s actions deprived him of a chance to avoid those injuries.” Vitale v Reddy, 150 Mich App 492, 502; 389 NW2d 456 (1986). The Court in Vitale noted that allowing such claims would expand existing common law, and it declined to do so, stating that such a decision “is best left to either the Supreme Court or the Legislature.” Id. at 504. In a footnote, the Court observed that the wrongful-death statute, MCL 600.2922,
requires proof that the wrongful acts or omissions were the cause of death. The statutory provision would not allow a plaintiff to recover in a situation where he could prove only that defendant’s acts or omissions were the cause of a lost chance but could not prove that defendant’s acts or omissions were the cause of death. [Id. at 504 n 4.]
In accord with this analysis, this Court has stated: “The lost opportunity doctrine allows a plaintiff to recover when the defendant’s negligence possibly, i.e., [by] a probability of fifty percent or less, caused the plaintiffs injury.” Weymers v Khera, 454 Mich 639, 648; 563 NW2d 647 (1997) (emphasis added). The Weymers Court aptly described the lost-opportunity doctrine as “the antithesis of proximate cause.” Id. In cases in which the plaintiff alleges that the defendant’s negligence more probably than not caused the injury, the claim is one of simple medical malpractice. Id. at 647-648.
In Falcon v Mem Hosp, 436 Mich 443; 462 NW2d 44 (1990), this Court first recognized a claim for lost opportunity to survive. Falcon was a wrongful-death case in which this Court allowed a claim to go forward even though the plaintiffs granddaughter would have had only a 37.5 percent chance of surviving a medical accident had she received proper care. Because proper medical procedures had not been followed, the granddaughter’s chance of surviving the accident went to essentially zero. The lead opinion in Falcon admitted that the plaintiff could not show that the malpractice had more likely than not caused her granddaughter’s death, but could show that it had caused her granddaughter to lose a “substantial opportunity of avoiding physical harm.” Id. at 470 (LEVIN, J.). The lead opinion disavowed the traditional rule that requires a plaintiff to show that, but for the defendant’s negligence, the patient would not have suffered the physical harm, saying that the “more probable than not standard, as well as other standards of causation, are analytic devices — tools to be used in making causation judgments.” Id. at 451. Instead, despite the fact that the plaintiff could not show that the doctor’s malpractice had more probably than not caused her granddaughter’s death, the plaintiff had a claim because the malpractice did cause her granddaughter harm. The 37.5 percent chance for a better outcome was “hardly the kind of opportunity that any of us would willingly allow our health care providers to ignore.” Id. at 460. This harm occurred before the granddaughter’s death, at the moment “[w]hen, by reason of the failure to implement [certain] procedures,” she was denied any opportunity of living. Id. at 469, 471 n 44. The lead opinion characterized its holding as requiring the plaintiff to show, more probably than not, that the malpractice reduced the opportunity of avoiding harm: “failure to protect [the granddaughter’s] opportunity of living.” Id. at 469. Loss of her 37.5 percent opportunity of living, the lead opinion stated, “constitutes a loss of a substantial opportunity of avoiding physical harm.” Id. at 470.
The lead opinion in Falcon thus concluded that the loss-of-opportunity claim accrued not when the patient died, but at the moment she went from having a 37.5 chance of survival to having no chance of survival. Under this theory, a plaintiff would have a cause of action independent of that for the physical injury and could recover for the malpractice that caused the plaintiff to go from a class of patients having a “good chance” to one having a “bad chance.” Without this analysis, the plaintiff in Falcon would not have had . a viable claim because it could not have been shown that the defendant more probably than not caused the physical injury. Until Falcon, medical-malpractice plaintiffs alleging that the defendant’s act or omission hastened or worsened the injury (such as by failing to diagnose a condition) had to prove that the defendant’s malprac tice more probably than not was the proximate cause of the injury. See, e.g., Morgan v Taylor, 434 Mich 180; 451 NW2d 852 (1990); Naccarato v Grob, 384 Mich 248, 252; 180 NW2d 788 (1970); Skeffington v Bradley, 366 Mich 552; 115 NW2d 303 (1962).
When the Court decided Falcon, MCL 600.2912a read:
In an action alleging malpractice the plaintiff shall have the burden of proving that in light of the state of the art existing at the time of the alleged malpractice:
(a) The defendant, if a general practitioner, failed to provide the plaintiff the recognized standard of acceptable professional practice in the community in which the defendant practices or in a similar community, and that as a proximate result of the defendant failing to provide that standard, the plaintiff suffered an injury.
(b) The defendant, if a specialist, failed to provide the recognized standard of care within that specialty as reasonably applied in light of the facilities available in the community or other facilities reasonably available under the circumstances, and as a proximate result of the defendant failing to provide that standard, the plaintiff suffered an injury.
Three years after Falcon, the Legislature enacted 1993 PA 78, amending MCL 600.2912a to add the second subsection. In its entirety, the statute as amended reads:
(1) Subject to subsection (2), in an action alleging malpractice, the plaintiff has the burden of proving that in light of the state of the art existing at the time of the alleged malpractice:
(a) The defendant, if a general practitioner, failed to provide the plaintiff the recognized standard of acceptable professional practice or care in the community in which the defendant practices or in a similar community, and that as a proximate result of the defendant failing to provide that standard, the plaintiff suffered an injury.
(b) The defendant, if a specialist, failed to provide the recognized standard of practice or care within that specialty as reasonably applied in light of the facilities available in the community or other facilities reasonably available under the circumstances, and as a proximate result of the defendant failing to provide that standard, the plaintiff suffered an injury.
(2) In an action alleging medical malpractice, the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants. In an action alleging medical malpractice, the plaintiff cannot recover for loss of an opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than 50%. [New language emphasized.]
As can be seen, the Legislature retained the already-existing language, making it subsection 1 of the statute. Both subsection 1(a) and subsection 1(b) require the plaintiff to show that, “as a proximate result of the defendant failing to provide [the appropriate standard of practice or care], the plaintiff suffered an injury.” Further, the Legislature added subsection 2. Specifically, the first sentence of this new subsection codifies and reiterates the common-law requirement that a plaintiff show that the defendant’s malpractice more probably than not caused the plaintiffs injury. The second sentence of subsection 2 adds that, in medical-malpractice cases, a “plaintiff cannot recover for loss of an opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than 50%.” However, one must keep in mind that the relevant caselaw when subsection 2 was enacted held that the lost-opportunity doctrine applies “in situations where a plaintiff cannot prove that a defendant’s actions were the cause of his injuries . . . .” Vitale, supra at 502 (emphasis added). That is, the first sentence of subsection 2 requires plaintiffs in every medical-malpractice case to show the defendant’s malpractice proximately caused the injury while, at the same time, the second sentence refers to cases in which such proof not only is unnecessary, but is impossible. Accordingly, I conclude that the two sentences of subsection 2 create a paradox, allowing claims in the second sentence while precluding them by the first sentence.
While it is tempting to argue, as Justice CAVANAGH does, that the Legislature intended to allow as an “injury” a plaintiffs lost chance alone, without proof of physical injury, this Court addressed that issue in Wickens. In Wickens, supra at 60, the Court stated that the first sentence of subsection 2 “expressly limits recovery to injuries that have already been suffered and more probably than not were caused by the defendant’s malpractice.” A reduction of a person’s chances of avoiding injury is not itself a present injury, but is only an indication of the likelihood of suffering a future injury. Id. at 60-61. Therefore, because of the statutory present-injury requirement, the plaintiff in Wickens could not recover for her reduced expected life span— the exact kind of injury that Falcon allowed. Moreover, it has never been the law in this state that a negligence suit can be sustained when the alleged negligence did not cause a physical injury to a person or property. Henry v Dow Chem Co, 473 Mich 63, 75-76; 701 NW2d 684 (2005). The Legislature would have understood that this is what the term “injury” encompassed when it enacted the language reiterating this traditional requirement: the plaintiff must have an injury proximately caused by the defendant. Ford Motor Co v City of Woodhaven, 475 Mich 425, 439-440; 716 NW2d 247 (2006). Thus, what the Legislature intended by the statute was likely something more traditional: a situation in which an injury might have occurred anyway, but in which the defendant’s act or omission hastened or worsened it in such a way that the plaintiff suffered more severe physical injury than he or she would have had the negligence not occurred. As noted, before Falcon, such cases were litigated under the ambit of traditional medical-malpractice law.
In my view, there is little question that the statute cannot be interpreted as written. Avoiding the underlying paradox of the statute allowing in one sentence suits that in another sentence it precludes, the Court of Appeals, interpreting the second sentence by itself in Fulton, found two possible, and fully contradictory, constructions, each of which could be achieved only by adding words to the statute. The Fulton Court expressed the issue before it as whether the second sentence of the statute requires a plaintiff to show “only that the initial opportunity to survive before the alleged malpractice was greater than fifty percent... or, instead, that the opportunity to survive was reduced by greater than fifty percent because of the alleged malpractice ....” Fulton, supra at 77-78 (emphasis added). The Court noted that the statute was ambiguous because reasonable minds could differ regarding which of these meanings could be read from the words of the statute. The Court concluded that the first interpretation required that the word “initial” be inferred to modify “opportunity” and that the second required that the words “loss of” be inferred to modify “opportunity.” Id. at 80. Apparently finding itself obligated to choose one of these two interpretations, the Court then decided that the second construction was the one intended by the Legislature because it reflected the Legislature’s rejection of Falcon. The Court asserted that the lead opinion in Falcon had focused on the “extent of the loss” and that the Legislature was insisting on a greater loss for the claim to be actionable. Id. at 82-83. However, Falcon’s focus was almost entirely on the plaintiffs initial opportunity being substantial, and so it is equally plausible that the Legislature merely intended for a plaintiff to have an initial opportunity of more than 50 percent. Both interpretations proposed in Fulton implicate a negative reaction to Falcon, and nothing in the statutory language, the statutory context, or the statute’s history gives any further clues to assist in choosing the “correct” interpretation.
It is confounding to attempt to ascertain just what the Legislature was trying to do with this amendment. Even if it was trying to create a remedy for the “injury” of a reduction in chances following medical malpractice, by imposing the threshold of greater than 50 percent it may well have eliminated most of the cases that might benefit from such a rule. For example, if the patient in Falcon had enjoyed a greater than 50 percent initial likelihood of survival (that is, she was not likely to die even with proper treatment), the plaintiff probably would have brought a standard medical-malpractice case, and the jury would have decided proximate cause in the usual way. It was only because the plaintiff could not show that the patient more probably than not would have survived but for the doctor’s negligence that prompted the plaintiff to seek her remedy under the doctrine of lost opportunity.
As written, the second sentence of MCL 600.2912a(2) can be made understandable only by adding words or by redefining “injury” in a way significantly contrary to the mass of caselaw at the time the sentence was added. Another possible alternative reading is that the second sentence of subsection 2 was intended not to create a new type of claim, but to limit courts from expanding the common law so far as to allow cases like Falcon. None of these multiple, contradictory interpretations can be shown to be the “correct” construction of legislative intent. Choosing between them can only be a guess. Moreover, it remains that the second sentence impossibly conflicts with the requirement of a proxi mate cause of the injury in both the first sentence of subsection 2 and in subsection 1. Accordingly, I conclude that the second sentence of subsection 2 cannot be judicially enforced because doing so requires the Court to impose its own prerogative on an act of the Legislature.
I find the second sentence of MCL 600.2912a(2), as written, substantially incomprehensible because (1) it either cannot be harmonized with the proximate-cause requirement of the rest of the statute or creates by implication a new cause of action contrary to common law and (2) it provides no guidance regarding its correct application. The remaining portions of MCL 600.2912a should continue in effect. MCL 8.5.
This would leave, for medical-malpractice claims, the requirement imposed by the statute that “the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants.” MCL 600.2912a(2). In addition, the word “injury” would continue to retain its meaning in tort of a present physical injury to person or property. I believe that, by codifying and restating the requirements of causation and injury in existence at the time Falcon was decided, the Legislature effectively overruled Falcon and reinstated the traditional elements of medical-malpractice claims.
In accord with my conclusion that the second sentence of MCL 600.2912a(2) is incomprehensible as written, I would hold that Fulton’s construction of that part of the statute is no longer good law. 1 believe that the Legislature intended to retain the traditional proximate-cause requirement in effect before Falcon and that that is what a plaintiff must prove.
IV APPLICATION
Although I believe that the lower courts erred by applying Fulton and that the trial court incorrectly instructed the jury on the issue of whether plaintiff had shown that defendant’s negligence caused him to lose a greater than 50 percent chance of a better result, I would conclude that it is not necessary to order a new trial. For each defendant, the trial court instructed the jury that it had to find by a preponderance of the evidence (1) that the defendant was professionally negligent, (2) that plaintiff sustained injury and damages, and (3) that the professional negligence or malpractice of that defendant was a proximate cause of the injury and damages. After giving these instructions, the court farther instructed the jury: “I’m going to talk about damages. In an action alleging claims of professional negligence against a physician, even if you find professional negligence, the Plaintiff cannot recover unless the Plaintiffs chance of having a better result was changed by greater than 50 percent.” Thus, after being instructed that it had to find the traditional elements of medical malpractice and, in addition, had to find that plaintiff had lost an opportunity of greater than 50 percent, the jury returned a verdict indicating it had found that all these elements were satisfied. Indeed, a review of the record shows that plaintiff suffered amputations and other injuries, and from the testimony presented the jury could have concluded that it was more likely than not that the amputations and other injuries were caused by the defendants’ negligence and would not have occurred absent that negligence. Most importantly, regardless of the jury’s finding of lost opportunity, it is clear from the way the instructions were given that the jury found that the traditional elements were met: defendants’ negligence more probably than not caused plaintiffs injuries. Thus, I believe that the jury properly found that plaintiff had satisfied the causation and injury elements. Accordingly, I would hold that reversal is not required and would affirm the result of the judgment of the Court of Appeals.
V SUMMARY
In an attempt to clarify for the reader the majority and minority positions on each issue, I provide the following summary:
All seven justices would affirm the result of the Court of Appeals decision and the judgment for plaintiff. Six of the justices believe that this is not a lost-opportunity case; Justice MARKMAN would hold that it is such a case. All seven justices believe that Fulton’s analysis is incorrect or should be found to no longer be good law, though their reasons for doing so vary. Justices CORRIGAN and YOUNG and I would find that Fulton is no longer good law because we would hold that the statute is unenforceable as written. Justice MARKMAN would hold that Fulton is inconsistent with the statutory language. Justices Weaver, Cavanagh, and Kelly would hold that Fulton is incorrect because it erroneously added words to the statute when analyzing the phrase “the opportunity.” Of the four justices holding that the statute is not unenforceable as written (Justices WEAVER, CAVANAGH, Kelly, and Markman), only Justice Markman would define the term “opportunity” in accordance with the Waddell article, while the other three (Justices WEAVER, CAVANAGH, and Kelly) would define it in accordance with Falcon, but with a higher threshold than Falcon required. The same four justices (Justices WEAVER, Cavanagh, Kelly, and Markman) would hold that loss of the opportunity is, by itself, a compensable injury, although the opportunity must be “lost” — that is, the bad result must occur — in order for a claim to accrue.
Given this montage of issues and positions created by the language of this statute, it would be helpful for the Legislature to reexamine its goal and the policies it wishes to promote and strive to better articulate its intent in that regard.
Corrigan and Young, JJ., concurred with Taylor, C.J.
CAVANAGH, J. I agree with Chief Justice TAYLOR that the evidence presented in this case supports a traditional medical-malpractice claim; thus, I concur that the jury’s verdict should be upheld. However, I do not agree with the conclusion that the second sentence of MCL 600.2912a(2) is incomprehensible and unenforceable. Therefore, I respectfully disagree with Chief Justice TAYLOR’s analysis of that provision.
Chief Justice TAYLOR identifies two problems with MCL 600.2912a(2) that he believes render it partially unenforceable: (1) the first and second sentences conflict and (2) the second sentence is incomprehensible. I disagree, because the circumstances of the 1993 amendment of this statute clarify the meaning of the statutory language and resolve both concerns.
THE ORIGINS OF THE LOSS-OF-OPPORTUNITY DOCTRINE
The history of the loss-of-opportunity doctrine is highly relevant to the interpretation of MCL 600.2912a(2) because this Court’s adoption of the doctrine evidently prompted the Legislature to add that provision. In Falcon v Mem Hosp, 436 Mich 443; 462 NW2d 44 (1990), this Court first recognized the loss-of-opportunity doctrine. Falcon involved a wrongful- death claim brought on behalf of a woman who had suffered an amniotic embolism during childbirth. As in all negligence cases, the plaintiff was required to show causation to establish a valid medical-malpractice claim. Falcon discussed various causation theories. Some courts have required a plaintiff to establish “that it is more probable, measured as more than fifty percent, that, but for such negligence, the patient would not have suffered the physical harm.” Id. at 449 (LEVIN, J.). Falcon termed this the “more probable than not standard.” Id. at 451. Under this standard, “a plaintiff who establishes that the patient would have had more than a fifty percent opportunity of not suffering physical harm had the defendant not acted negligently, recovers one hundred percent of the damages.” Id. at 450. The plaintiff in Falcon could not have maintained a wrongful-death action under the more-probable-than-not standard — the decedent only had a 37.5 percent chance of surviving even without the alleged malpractice, so it was not more probable than not that the physician’s malpractice caused the decedent’s death. Id. at 460.
While the plaintiff in Falcon could not recover for the injury of her granddaughter’s wrongful death, we ruled that the plaintiff nevertheless had a different cause of action available to her. Falcon adopted the approach taken by other courts that recognized “loss of an opportunity for a more favorable result, as distinguished from the unfavorable result, as compensable in medical malpractice actions.” Id. at 461 (emphasis added). “Under this approach, damages are recoverable for the loss of opportunity although the opportunity lost was less than even, and thus it was not more probable than not that the unfavorable result would or could have been avoided.” Id. at 461-462. Thus, the Falcon decision explicitly recognized loss of an opportunity to avoid physical harm as a distinct injury. A plaintiff could bring a claim for loss of an opportunity to avoid death, even if she could not maintain a claim for the death itself because she could not establish causation for the death.
Falcon’s approach to calculating damages for a loss-of-opportunity claim also indicates that it treated the lost opportunity as a distinct injury, not simply a direct physical-harm injury that enjoyed a lower causation standard. Because the plaintiffs granddaughter in Falcon allegedly lost a 37.5 percent chance of survival, we concluded that the appropriate measure of damages would be “37.5 percent times the damages recoverable for wrongful death. . . .” Id. at 471. Thus, generally speaking, “ ‘[t]he proper computation of damages would limit the damages recoverable to only that amount of reduced chance of recovery actually caused by the physician’s negligent conduct.’ ” Id. at 472 n 47 (citation omitted). We consulted Mays v United States, 608 F Supp 1476, 1482-1483 (D Colo, 1985), for its method of computing damages attributable to the defendant. Falcon, 436 Mich at 471-472 (LEVIN, J.). In Mays, malpractice had reduced the patient’s opportunity to survive from 40 to 15 percent, so the court computed the damages by multiplying the opportunity lost (40 minus 15) by the net pecuniary loss to determine the damages for the harm caused by the defendant. Id. Calculating the damages this way permitted the plaintiff “to recover damages only for the reduction in the patient’s opportunity of survival.” Id. at 472. This calculation isolates the value of the injury that can be causally linked to a defendant’s negligence — the loss of an opportunity. The value of a loss-of-opportunity claim is measured by the extent of the loss; so, clearly, the injury being compensated is the loss of a particular amount of opportunity. By contrast, the measure of damages in a traditional claim for wrongful death or physical harm is, generally speaking, the value of damages attributable to the death or physical harm; as such, the injury being compensated is the death or physical harm.
In sum, when Falcon adopted the loss-of-opportunity doctrine, it recognized that the injury of loss of an opportunity was distinct from the injury of suffering the associated physical harm — which, in that case, was death. However, Falcon indicated that not all losses of opportunity were actionable; rather, a plaintiff must suffer the loss of a substantial opportunity for a better result. “The cause of action accrues when harm and damages result from the loss of a substantial opportunity for a better result.” Id. at 470 n 43. We concluded “that loss of a 37.5 percent opportunity of living constitutes a loss of a substantial opportunity of avoiding physical harm,” but declined to “decide what lesser percentage would constitute a substantial loss of opportunity” in other circumstances. Id. at 470.
Finally, Falcon emphasized that a loss-of-opportunity cause of action was not exempt from the more-probable-than-not standard of causation. “Under this approach, the plaintiff must establish more-probable-than-not causation. He must prove, more probably than not, that the defendant reduced the opportunity of avoiding harm.” Id. at 462. Unlike a claim for wrongful death or physical injury, the “patient. .. need not show that it was probable, measured as more than fifty percent, that the course of the disease and treatment would have been different.” Id. at 470 n 43. Instead, “[i]t is suffi cient to show, more probably than not, that had there been a correct diagnosis, the patient would have had a substantial opportunity of avoiding the course of the disease and treatment that occurred.” Id. Therefore, while a claim for loss of opportunity addresses a different injury than a cause of action for the physical injury itself, it is still subject to the same standard of proof of causation.
Falcon’s enunciation of the loss-of-opportunity doctrine is significant, because it apparently provoked the Legislature to amend MCL 600.2912a. In 1993, the Legislature amended that provision by adding a second subsection, which states:
In an action alleging medical malpractice, the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants. In an action alleging medical malpractice, the plaintiff cannot recover for loss of an opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than 50%. [MCL 600.2912a(2).]
The amendment was widely understood to be a direct reaction to the Falcon decision. As a majority of this Court noted, after Falcon adopted the lost-opportunity doctrine, “[o]ur Legislature immediately rejected Falcon and the lost opportunity doctrine. MCL 600.2912a(2) . . . .” Weymers v Khera, 454 Mich 639, 649; 563 NW2d 647 (1997). I agree that the amendment of MCL 600.2912a(2) was a reaction to Falcon, but I would not characterize it as a rejection of the lost-opportunity doctrine entirely. It merely established the threshold for loss-of-opportunity claims.
THE PROPER INTERPRETATION OF MCL 600.2912a(2)
The Legislature’s addition of MCL 600.2912a(2) should be read in light of the Falcon decision. This Court follows the principle that when a statute uses a common-law term and there is no clear legislative intent to alter the common law, the term will be interpreted as having the same meaning as at common law. Ford Motor Co v City of Woodhaven, 475 Mich 425, 439; 716 NW2d 247 (2006). Additionally, the Legislature is presumed to be aware of judicial interpretations of existing law when passing legislation. Id. at 439-440. In this instance, the Legislature appears to have reacted to a particular opinion of this Court, so that opinion’s holdings offer considerable insight into the Legislature’s intent. When interpreting MCL 600.2912a(2), then, it is important to keep in mind several principles established by the Falcon decision: (1) loss-of-opportunity claims are subject to the more-probable-than-not standard for proving causation, (2) the “injury” in a loss-of-opportunity claim is the loss of a substantial opportunity to avoid physical harm, not the actual physical harm itself, and (3) loss of a 37.5 percent opportunity of living constitutes a compensable loss of a substantial opportunity to avoid physical harm. Chief Justice TAYLOR interprets MCL 600.2912a(2) without considering these principles from Falcon, and thus comes to the mistaken conclusion that the statute is unenforceable and inconsistent with the lost-opportunity doctrine.
The first sentence of MCL 600.2912a(2) assigns a medical-malpractice plaintiff “the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants.” Chief Justice TAYLOR concludes that this sentence precludes lost-opportunity claims because those claims only arise when a plaintiff cannot prove that a defendant’s negligence more probably than not caused the plaintiffs injury. Ante at 157. But this overlooks two principles gleaned from Falcon that the Legislature would have been aware of while drafting this sentence: loss-of-opportunity claims are subject to the more-probable-than-not standard of causation and, in such claims, the “injury” is the loss of an opportunity to avoid the physical harm, not the associated physical harm itself. When the first sentence of MCL 600.2912a(2) is interpreted according to Falcon’s articulation, its causation requirement does not preclude claims for loss of opportunity. It simply codifies the causation requirement that applies to claims for the injury of suffering physical harm as well as claims for the injury of the loss of an opportunity to avoid physical harm. Just like Falcon, MCL 600.2912a(2) requires that a plaintiff asserting a cause of action for loss of opportunity prove that the defendant more probably than not caused the loss of an opportunity to survive or the loss of an opportunity to achieve a better result.
The first sentence of MCL 600.2912a(2) should also be interpreted in accordance with Falcon’s understanding of the word “injury.” In medical-malpractice cases, the underlying injury is quite often death or some physical harm. But Falcon identified a distinct injury in medical-malpractice cases — the loss of a substantial opportunity to avoid physical harm. This is significant, because a lost-opportunity plaintiff, by definition, cannot prove that a defendant’s malpractice more probably than not caused the patient to suffer physical harm or death. Take the example of a patient who before treatment had a 40 percent chance of survival as the result of a preexisting condition. If that patient died after being negligently treated by a physician, the plaintiff would not be able to prove that the physician’s malpractice more probably than not (50 percent or greater) caused the patient’s death. There was a 60 percent chance that the patient would have died regardless of the malpractice, as a result of the preexisting condition. But the plaintiff might be able to show that the physician’s malpractice more probably than not caused the patient to lose up to a 40 percent chance of avoiding death. The first sentence of MCL 600.2912a(2) simply places this burden to prove causation on a plaintiff, whether the alleged injury is the physical harm itself or the loss of an opportunity to avoid harm.
Moreover, the explicit recognition of the loss-of-opportunity doctrine in the second sentence of MCL 600.2912a(2) supports the conclusion that the Legislature did not intend to preclude lost-opportunity claims by adopting the more-probable-than-not standard of causation. The second sentence states: “In an action alleging medical malpractice, the plaintiff cannot recover for loss of an opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than 50%.” MCL 600.2912a(2). If the Legislature had intended to reject the lost-opportunity doctrine, it would have entirely prohibited plaintiffs from recovering for a loss of an opportunity. Instead, it permitted recovery for loss of an opportunity under certain circumstances — if the opportunity was greater than 50 percent. This sentence merely sets the threshold for invoking the loss-of-opportunity doctrine. It requires that a plaintiffs premalpractice opportunity to survive or achieve a better result was greater than 50 percent.
The conclusion that the first and second sentences of MCL 600.2912a(2) do not conflict is also related to the proper interpretation of the second sentence. Chief Justice TAYLOR identifies an ambiguity in the second sentence that, he contends, can only be resolved by adding words or by redefining the term “injury.” Ante at 160. The Court of Appeals also identified this ambiguity in Fulton v William Beaumont Hosp, 253 Mich App 70; 655 NW2d 569 (2002). Fulton described the ambiguity: the second sentence of the statute requires a plaintiff to show either that the premalpractice opportunity was greater than 50 percent or that the opportunity was reduced by more than 50 percent. Id. at 77. In short, the ambiguous term is the statute’s second use of the word “opportunity.” I disagree with the conclusion that none of the multiple, contradictory interpretations can be shown to be the correct construction of legislative intent. While reasonable minds could differ with respect to the meaning of this statute, the correct interpretation can be discerned by conventional means of construction.
The proper interpretation of the second use of the word “opportunity” in MCL 600.2912a(2) can be resolved by simply considering the entire text of the sentence. The first time “opportunity” is used, the statute speaks of recovery for “loss of an opportunity to survive.” MCL 600.2912a(2). By using this term from Falcon without modification, the Legislature adopted Falcon’s articulation of the lost-opportunity cause of action. And we know from Falcon that by the very nature of a lost-opportunity claim, the opportunity alleged to have been lost must be the premalpractice opportunity. The word “opportunity” in the phrase “loss of an opportunity” must refer to the premalpractice opportunity because that is the opportunity that is lost in some measure and, thus, creates a claim.
The second time “opportunity” is used in the sentence, it is not preceded by the phrase “loss of an.” But the statute’s replication of the term “opportunity” within the same sentence clearly indicates that they relate to each other and are to be construed identically. Thus, the term “opportunity” in isolation has the same meaning that it does within the phrase “loss of an opportunity to survive.” Accordingly, a plaintiff cannot recover for the loss of an opportunity unless the opportunity — the premalpractice opportunity that was allegedly lost in some measure — was greater than 50 percent. Thus, this interpretation does not require that any words be added to the sentence; it merely requires the word “opportunity” to be construed consistently within the same sentence.
The other proposed meaning of the statute’s second use of the word “opportunity” would conflict with the sentence’s first use of the word. Instead of reading the phrase “unless the opportunity was greater than 50%” as written, this interpretation would infer the words “loss of” in front of “opportunity.” Justice MARKMAN advocates this interpretation. He concludes that “the opportunity” clearly refers back to the “loss of an opportunity,” and thus the sentence means that the loss of the opportunity must be greater than 50 percent. Post at 195. But this interpretation conflates the phrase “loss of an opportunity” with the phrase “the opportunity.” It assumes that the Legislature used the phrase “the opportunity” as a shorthand reference for “loss of an opportunity” and requires the reader to infer the phrase “loss of” before the second use of the word “opportunity.” This interpretation is less plausible than my interpretation, which gives the term “opportunity” the same meaning regardless of whether it appears alone or within the phrase “loss of an opportunity,” and does not require reading language into the statute. In sum, I cannot conclude that this competing interpretation is correct when it poses linguistic problems that are not found in the other interpretation.
Moreover, interpreting the word “opportunity” to mean premalpractice opportunity comports with the purpose of the statute and the context in which it was adopted, while the other interpretation does not. Falcon adopted the loss-of-opportunity doctrine to provide a cause of action to plaintiffs who could not establish causation for physical harm, but could establish causation for the loss of a substantial opportunity to avoid that physical harm. MCL 600.2912a(2) cannot limit recovery for the loss of an opportunity to cases in which the loss was greater than 50 percent, because any plaintiff who satisfied that condition would have a traditional medical-malpractice claim for the death or physical harm itself. A plaintiff who can show that malpractice caused the loss of a more than 50 percent opportunity to avoid death or physical harm can meet the more-probable-than-not standard of causation for the associated death or physical harm. This interpretation would permit a loss-of-opportunity claim when a plaintiffs chance for survival was reduced from 80 percent to 20 percent, but not when the plaintiffs chance for survival was reduced from 80 percent to 40 percent. It would not make sense to permit a plaintiff whose chance of survival was reduced from 80 percent to 20 percent to bring a lost-opportunity claim, because that plaintiff could show that the negligence more probably than not caused the death, thus establishing a traditional wrongful-death claim. Meanwhile, the statute would deny recovery for the loss of an opportunity to a plaintiff who suffered death, but could only show that the malpractice reduced his opportunity to survive from 80 percent to 40 percent. The plaintiff in that case would be left with no cause of action at all; he could not meet the more-probable-than-not standard of causation for the injury of death, and he would be precluded from bringing a lost-opportunity claim because he lost only 40 percent of his opportunity. This cannot be the result intended by the Legislature. This interpretation of the statute would prevent Falcon's intended class of plaintiffs from bringing a loss-of-opportunity claim, while still recognizing a cause of action for loss of opportunity. It would provide a class of plaintiffs who already have a traditional medical-malpractice cause of action with an additional cause of action for loss of opportunity. Such a result is illogical in light of one significant purpose of the statute — to codify the loss-of-opportunity doctrine recognized in Falcon.
Finally, interpreting the statute as referring to the premalpractice opportunity is consistent with the history of the amendment. That is, MCL 600.2912a(2) is understood to be a legislative reaction to Falcon. MCL 600.2912a(2) retained the loss-of-opportunity doctrine, so it could not have been intended to entirely preclude the class of plaintiffs recognized by Falcon from bringing such claims; such a drastic step would be entirely at odds with the rationale of the loss-of-opportunity doctrine. Rather, MCL 600.2912a(2) retained the doctrine, but set the threshold at 50 percent, so that only plaintiffs who had a greater than 50 percent premalpractice opportunity to survive or achieve a better result could bring a claim. This interpretation is the only reasonable explanation for the Legislature’s action — it aligns with the Legislature’s apparent intent to both endorse the doctrine and place a limit on it. In sum, I concur with Chief Justice TAYLOR that plaintiff in this case proved a traditional medical-malpractice claim based on his physical injuries and that the jury’s verdict should be upheld. Plaintiff did not assert, or need to resort to, a claim for loss of opportunity. However, I disagree that the second sentence of MCL 600.2912a(2) is substantially incomprehensible. The correct interpre tation of the second sentence can be discerned by an examination of the text of the statute. The result of this analysis is confirmed by the history of both the loss-of-opportunity doctrine and the statute. There is no internal conflict within the statute. The loss-of-opportunity doctrine is entirely consistent with the more-probable-than-not causation standard, so there is no conflict between the first and second sentences of MCL 600.2912a(2).
RESPONSE to justice markman
Justice Markman’s approach to interpreting MCL 600.2912a(2) is grounded in several faulty premises. The first is that traditional medical-malpractice cases require that there be “no question that the proper treatment would have resulted in a good outcome,” because otherwise “it cannot be proved that the improper treatment caused the bad outcome.” Post at 217. This proposition would preclude plaintiffs with preexisting conditions that might have contributed slightly to their injuries from bringing medical-malpractice claims. It would also preclude medical-malpractice claims from arising in situations in which proper medical treatment does not always succeed. This proposition cannot be correct. Plaintiffs alleging medical malpractice, regardless of whether they have preexisting conditions, are not required to prove that a defendant was a 100 percent cause of their injuries; they must simply prove more-probable-than-not causation. After all, traditional medical-malpractice claims are subject to the same principles of causation as other negligence claims. As Prosser & Keeton, Torts (5th ed), § 41, p 270, notes, “[w]hen a child is drowned in a swimming pool, no one can say with certainty that a lifeguard would have saved the child; but the experience of the community permits the conclusion that the absence of the guard played a significant part in the drowning.” There is no reason to treat medical-malpractice claims any differently in this regard. For example, even if an expert testified that a properly performed medical procedure will avoid a bad result 99 percent of the time, a jury could still conclude that the physician’s negligence was more probably than not the cause of the bad result. See post at 217.
Second, Justice MarkmAN’s approach suggests that the factor distinguishing a medical-malpractice claim from a lost-opportunity claim is whether there is another possible cause of an injury, such as a preexisting condition. He states:
... I conclude that a “lost opportunity” case is one in which it is at least possible that the bad outcome would have occurred even if the patient had received proper treatment. By contrast, if there is no question that the proper treatment would have resulted in a good outcome, then the patient who suffered a bad outcome has a traditional medical-malpractice action. [Post at 186.]
But this definition of a lost-opportunity case is contrary to both the doctrine as described by Falcon and the doctrine as adopted by the Legislature in MCL 600.2912a(2). The distinction between a lost-opportunity case and a medical-malpractice case does not pivot on a plaintiffs preexisting condition or the absolute certainty that proper medical treatment would have prevented the harm the plaintiff suffered. Rather, the determining factor is whether the plaintiff can prove, more probably than not, that the defendant’s negligence caused physical harm. If a plaintiff can prove more-probable-than-not causation for physical harm, then he has a medical-malpractice claim for that injury. If not, he may have a claim for loss of opportunity to avoid harm, if he can prove that the defendant’s negligence caused that injury: the loss of an opportunity to avoid harm. Of course, many lost-opportunity cases arise when a plaintiff has a preexisting condition that could have caused physical harm without negligence, but this is a correlation, not a cause. The fact that a plaintiff has a preexisting condition does not, by itself, cause a claim to be a lost-opportunity claim rather than a medical-malpractice claim. Similarly, the existence of other possible causes for a bad result does not determine the cause of action available to that plaintiff. Specifically, the possibility that a patient’s disease or injury itself may have caused the bad result does not mean that the patient cannot bring a traditional medical-malpractice claim. Rather, as Falcon ex plained, traditional medical-malpractice claims require a plaintiff to show that the negligence more probably than not caused physical harm. Falcon, 436 Mich at 449. The Legislature adopted Falcon’s term “loss of opportunity” as well as the traditional more-probable-than-not standard of causation. Accordingly, there is no reason to conclude that the distinguishing feature between medical-malpractice claims and lost-opportunity claims is the existence of other possible causes of the harm, as Justice MARKMAN appears to posit.
These faulty suppositions are significant, because they lead Justice MARKMAN to endorse Dr. Roy Waddell’s formula for calculating loss of opportunity. Waddell’s formula purports to calculate a plaintiffs lost opportunity to survive by determining “what percent of patients who would die without treatment” could otherwise “be saved with treatment.” If proper treatment creates a greater than 50 percent chance of survival within the set of patients who would have died without treatment, then a cause of action exists. But Waddell’s formula is flawed for several reasons. It operates from a mistaken understanding of a lost-opportunity case. The formula identifies plaintiffs who can show that negligence was more than a 50 percent cause of their death or physical harm. But that set of plaintiffs can, by definition, maintain a traditional cause of action for medical malpractice for the injury of death or physical harm itself. Accordingly, his formula would preclude true lost-opportunity plaintiffs from bringing claims and provide medical-malpractice claimants with lost-opportunity causes of action for which they have no need. Moreover, aside from its theoretical problems, the Waddell formula is blatantly inconsistent with the language of MCL 600.2912a(2). It is inconceivable that Justice MARKMAN can read the sentence “In an action alleging medical malpractice, the plaintiff cannot recover for loss of an opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than 50%” and conclude that it should be translated into this formula:
(Premalpractice chance) - (Postmalpractice chance) x 100 (Postmalpractice chance)
This formula has no basis in the language of MCL 600.2912a(2) or Falcon. MCL 600.2912a(2) simply requires that the opportunity was greater than 50 percent. Again, it is noteworthy that my interpretation does not require adding any inferred language to the statute. A plaintiffs premalpractice opportunity to survive or to achieve a better result must simply have been “greater than 50%.” The approach taken by Justice MARKMAN and Dr. Waddell requires this sentence to be rewritten to state that the plaintiffs opportunity to survive or to achieve a better result must have been decreased by 50 percent. See post at 195-197.
Finally, the Waddell approach leads to such anomalous results that it cannot possibly reflect the intention of the Legislature. The Legislature crafted MCL 600.2912a(2) as a reaction to Falcon, which permitted a lost-opportunity cause of action when the plaintiffs premalpractice opportunity to survive was 37.5 percent. As Justice MARKMAN acknowledges, if a plaintiff dropped from a 99.99 percent premalpractice chance of survival to a 99.97 percent postmalpractice chance of survival, the Waddell formula would conclude that the plaintiff had experienced an actionable 66.67 percent loss of opportunity. On the other hand, recovery would be barred if a plaintiff dropped from a 60 percent premalpractice chance of survival to a 40 percent chance of survival, because the plaintiff would have experienced only a 33 percent loss of opportunity. It is unlikely that the Legislature intended to compensate a loss of just 0.02 percentage points, while simultaneously precluding a loss of 20 percentage points. It is more likely that the Legislature disagreed with the threshold limit for lost-opportunity cases established by Falcon, 37.5 percent, and amended MCL 600.2912a(2) to raise the threshold to 50 percent.
RESPONSE TO CHIEF JUSTICE TAYLOR
While we reach different interpretations of MCL 600.2912a(2), I nevertheless agree with Justice MARKMAN that Chief Justice TAYLOR errs by concluding that the second sentence of the statute is incomprehensible and unenforceable. I share Justice MARKMAN’s objection to the unprecedented approach Chief Justice TAYLOR has taken in concluding that this statute is unenforceable simply because it presents a complex matter of interpretation. While the fracture of this Court on this matter certainly illustrates the difficulty of interpreting this statute, I disagree that it compels the conclusion that the statute is unenforceable. And, in fact, Chief Justice Taylor’s opinion paradoxically indicates that the statute will continue to be enforced unless the Legislature amends it, because the Fulton panel’s interpretation will remain controlling law. Ante at 164 n 14.
CONCLUSION
I disagree with Chief Justice Taylor’s conclusion that the second sentence of MCL 600.2912a(2) is incomprehensible and cannot be judicially enforced. Therefore, I respectfully disagree with his analysis of that provision. However, I agree that the jury’s verdict should be upheld, because plaintiff has presented evidence that supports a traditional medical-malpractice claim.
Weaver and Kelly, JJ., concurred with Cavanagh, J.
Throughout this opinion, “plaintiff” refers to Carl Stone; the claim of his wife, Nancy Stone, is derivative in nature.
MCL 600.1483.
In addition, subsections 1(a) and (b) of the statute both include language requiring the plaintiff to show that, “as a proximate result of the defendant failing to provide [the appropriate standard of practice or care], the plaintiff suffered an injury.” MCL 600.2912a(1)(a) and (b).
Although this Court decided Weymers long after the statute at issue was enacted in 1993, the negligence alleged in Weymers occurred before 1993. Accordingly, the Court applied the common law rather than the statute.
I agree with Justice Cavanagh’s reasoning and conclusion that Justice Markman’s definition of a lost-opportunity case is overbroad and inconsistent with the common-law meaning at the time MCL 600.2912a(2) was enacted. Post at 179-182. Long before Falcon v Mem Hosp, 436 Mich 443; 462 NW2d 44 (1990), plaintiffs successfully brought actions for medical malpractice even though they had preexisting conditions or might have had a bad result despite being properly treated.
Only Justice Archer joined Justice Levin’s lead opinion. Justice Boyle wrote a concurrence, joined by Justice Cavanagh, that agreed that tort law should allow a claim for “lost opportunity to survive” when “the negligence of the defendant more probably than not caused the loss of opportunity.” Falcon, supra at 472-473 (Boyle, J., concurring). However, the concurrence noted that “any language in the lead opinion suggesting that a similar cause of action might lie for a lost opportunity of avoiding lesser physical harm is dicta.” Id. at 473.
While Falcon superficially recognized this, it determined that the patient’s death, which could not be said to have been caused by the doctor’s malpractice, was the physical injury she suffered. By permitting the plaintiff to recover for a different injury (loss of an opportunity to survive), the Court ignored the fundamental requirement that a tort plaintiff must suffer a physical injury that was caused by the defendant’s negligence. Instead of clarifying that it was significantly redefining “injury” in a wholly new way, the lead opinion in Falcon first focused almost completely on relaxing the burden of proof regarding causation. See, e.g., Falcon, supra at 449-453 and nn 5 and 6, 455-457 (Levin, J.). Then it recited foreign cases holding that a reduction in chances is a compensable injury and determined that to be sound. Id. at 461-468. The opinion did not appear to recognize that this was contrary to a considerable body of existing Michigan caselaw. See id. at 494 (Riley, J., dissenting) (“The recovery of damages for the loss of a mere chance eviscerates the principles that underlie our tort law.”).
Justice Cavanagh asserts that a plaintiff cannot claim a lost opportunity “unless [the] plaintiff suffered a verifiable loss.” Post at 172 n 2. Justice Makkman appears to agree with him that a bad result must occur, otherwise the opportunity has not been lost. Post at 197. Certainly, in such cases the defendant’s conduct might have increased the likelihood of a bad result. Yet if the plaintiff is unable to show that the defendant’s negligence caused the bad result, how can he or she nonetheless show that the defendant’s negligence caused the opportunity to be lost? This is the heart of the problem with allowing loss-of-opportunity claims: either the patient has a concrete injury, in which case he or she should be required to prove causation, or the plaintiff does not, in which case the defendant should not be held liable. See Henry, supra at 75-76.
I agree with Justice Cavanagh, post at 174, that Justice Markman’s interpretation (and that of Fulton) improperly adds to the statute the words “loss of,” effectively replacing the word “opportunity” where it is used the second time with the phrase “loss of opportunity.” The only basis for adding this language is the simple desire to make the statute so read.
See, e.g., Mini Spas, Inc v State, 657 P2d 1348, 1350 (Utah, 1983) (refusing to rewrite “by judicial intervention” an act purporting to create a regulatory hoard because the act “cannot be implemented as written” and stating that “[pjlaintiff must seek a solution to this problem from the Legislature”); Warren v Branan, 109 Ga 835, 840; 35 SE 383 (1900) (holding that the provisions of an act seeking to establish the geographical limits of a town “are so indefinite, uncertain, and incomplete that the legislative intent can not be ascertained and given effect, and that therefore the act is wholly inoperative”).
Even if we were to strike both sentences of subsection 2, the proximate-cause requirement would remain in subsection 1.
Moreover, to the extent it could be considered as providing a method of determining proximate cause in failure-to-diagnose cases, I believe that Fulton was incorrectly decided. Fulton’s simplistic formula fails to consider that some patients would achieve a good result regardless of whether they received proper or improper treatment and, conversely, that some patients would achieve an unfavorable result regardless of the quality of their treatment. In any formula assessing causation, patients who would have had a favorable outcome regardless of treatment need to be taken out of the equation. See, e.g., Waddell, A doctor’s view of “opportunity to survive’’: Fulton’s assumptions and math are wrong, 86 Mich B J 32 (March 2007). Accordingly, I agree with Justice Markman that Waddell’s formula is one method of accurately assessing causation in cases in which there are multiple possible contributing causes.
I agree with Justice Markman that if the Legislature desires to allow a cause of action for lost opportunity, it should do so in a way that clearly indicates when such claims are allowed and how they should be analyzed. Post at 218 n 26. For example, Falcon’s analysis was based on a method found in King, Causation, valuation, and chance in personal injury torts involving preexisting conditions and future consequences, 90 Yale L J 1353 (1981), which identified several ways of analyzing lost-opportunity claims.
However, because a majority of justices hold that this is not a lost-opportunity case, the issue of the correctness of Fulton cannot be reached, and Fulton’s approach remains undisturbed as the method of analyzing lost-opportunity cases. Nonetheless, because the patient in Fulton would likely have survived had she received a timely diagnosis, I would assert that the claim should have been treated as one for ordinal^ medical malpractice and that the lower courts erred in applying to it the doctrine of lost opportunity.
Justice Levin wrote Falcon’s lead opinion, which Justice Archer signed. I joined Justice Boyle’s opinion, which concurred in the recognition of the loss-of-opportunity cause of action, but clarified that we were only called upon to determine whether such claims exist when the ultimate harm is death. Thus, a majority of this Court agreed on the fundamental principles of the loss-of-opportunity doctrine, although Justice Boyle and I would have limited the discussion to the harm that the Falcon plaintiff suffered-death.
Chief Justice Taylor’s concern that redefining “injury” in this way would permit recovery for a “lost chance alone, without proof of physical injury” is unfounded. Ante at 157. By definition, one does not suffer the loss of an opportunity to survive unless death occurs. Otherwise, there would have been no opportunity lost. Similarly, a claim for the loss of an opportunity to achieve a better result does not arise unless a plaintiff suffered a verifiable loss. The loss is the injury that the lost-opportunity doctrine recognizes. Typically, proof of an actionable loss will involve actual physical harm suffered by the plaintiff. Defining injury as such will not allow a plaintiff to recover for a potential future injury.
For example, a patient who had a premalpractice opportunity to survive of 60 percent, and whose chance of survival was reduced to 20 percent because of malpractice, would have a cause of action for loss of opportunity to survive if he ultimately died. The plaintiff in that case would not have a wrongful-death action because it was not more probable than not that the negligence caused the patient’s death. But he could have a cause of action for the loss of a 40 percent opportunity to survive, because the patient’s premalpractice opportunity to survive was greater than the threshold of 50 percent.
I disagree with the premise that a statute is ambiguous only if it is equally susceptible to more than one meaning.
Justice Markman denies that he reads words into the statute. Post at 195 n 10. But it is telling that Justice Markman has solved the inference problem present in his interpretation by repeatedly misquoting the statute. For example, he reports that MCL 600.2912a(2) “states that the Tost opportunity’ must be greater than 50 percent....” Post at 195 n 10. He repeats that MCL 600.2912a(2) “requires that the Tost opportunity’ be ‘greater than 50%’ ” in another portion of his opinion, post at 196, and later states that MCL 600.2912a(2) “only allows a plaintiff to recover for a Toss of an opportunity’ that was ‘greater than 50%,’ ’’post at 197. The selective positioning of these phrases artfully suggests that the statute actually says that the lost opportunity must he greater than 50 percent. But, in fact, the statute simply requires that “the opportunity was greater than 50%.” MCL 600.2912a(2) (emphasis added). The fact that Justice Markman is compelled to recharacterize the text of the statute in this way strongly suggests that his interpretation infers the word “lost” before the word “opportunity.”
Justice Markman asserts that I am incorrect on this point because, for example, plaintiff in this case can show that he lost an 80 percent opportunity to achieve a better result (no amputation), but “cannot prove that defendant’s malpractice caused the amputation, as he would be required to do in a traditional medical-malpractice action... because there was at least a 1 percent chance that plaintiff would have suffered an amputation even with proper treatment.” Post at 214. From this argument, it would appear that Justice Markman believes that medical-malpractice actions require a plaintiff to prove that a defendant’s negligence was a 100 percent cause of his injury. However, we have explained that the element of “cause in fact” in negligence does not require a plaintiff to “prove that an act or omission was the sole catalyst for his injuries ....” Craig v Oakwood Hosp, 471 Mich 67, 87; 684 NW2d 296 (2004). Rather, a plaintiff “must introduce evidence permitting the jury to conclude that the act or omission was a cause.” Id. This is consonant with the caselaw of other jurisdictions, and holds true regardless of whether a plaintiffs preexisting condition was a possible cause of his injury. In medical-malpractice cases,
the courts have uniformly adopted the position that proof of causation does not require that it be shown that the patient was certain to have recovered or improved with sound medical care, and it has often been said that the plaintiff may sustain the burden of establishing proximate causation with evidence that it was probable, or more likely than not, that the patient would have been helped by proper treatment. [Anno: Medical malpractice-. “Loss of chance" causality, 54 ALR4th 10, 18 (emphasis added).]
The Legislature codified this position in MCL 600.2912a(2), which gives the plaintiff the burden of proving that the defendant’s negligence more probably than not proximately caused his injury.
There was adequate evidence that the doctor’s malpractice proximately caused plaintiffs injuries. It is undisputed that plaintiffs aneurysm ruptured and that he suffered amputation of his legs as a result. The jury heard testimony that, had plaintiff been diagnosed earlier and undergone elective surgery, his chance of having complete success with no complications would have been approximately 95 percent, his chance of death would have been 1 to 5 percent, and his chance of amputation would have been 1 percent. Given the rupture, his approximate chance of complete success with no complications dropped to 5 to 10 percent, his chance of death became 60 to 90 percent, and his chance of surviving, but suffering amputation, became 5 percent. When a patient’s chance of complete success drops from 95 percent to less than 10 percent because of a doctor’s malpractice, and the patient suffers one of the natural complications, the jury’s conclusion that the malpractice proximately caused that injury is warranted. If the jury in this case could only have considered the specific risk of amputation, as Justice Makkman suggests, post at 216 n 25, plaintiff would essentially be penalized for managing to survive an event that few others do. While the risks associated with harms that were not actually suffered by a plaintiff are not relevant to the extent of a plaintiffs lost opportunity, potential risks stemming from a physician’s malpractice may be relevant to the jury’s determination of whether malpractice caused a plaintiff to suffer a particular harm rather than achieve a good result.
Justice Markman cites no authority for the proposition that a plaintiff may only recover for traditional medical malpractice if proper treatment would not have resulted in the bad result suffered by the plaintiff. If true, that principle would foreclose virtually all traditional medical-malpractice cases. With almost any medical procedure, there is a statistical probability that a patient will experience a bad result, even if the procedure is performed properly. As just one example, the Food and Drug Administration (FDA) counsels patients considering LASIK eye surgery that while “[m]ost patients are very pleased with the results of their refractive surgery!,] • • • like any other medical procedure, there are risks involved.” Food and Drug Administration, Center for Devices and Radiological Health <http://www.fda.gov/cdrh/LASIK/risks.htm> (accessed July 2, 2008). The FDA advises that the risks of LASIK surgery include loss of vision, debilitating visual symptoms, and severe dry eye syndrome. Id. In sum, “[t]here are never any guarantees in medicine.” Id. Within the realm of eye surgery alone, Justice Makkman’s rule would mean that any LASIK patient who experienced a loss of vision, debilitating visual symptoms, or severe dry eye syndrome would not be able to bring a traditional medical-malpractice claim simply because there was a chance, however slight, that those conditions would have occurred as a result of the properly performed LASIK procedure itself.
Justice Makkman offers the hypothetical treatment of a broken leg to show that his theory of traditional medical-malpractice claims is consistent with traditional causation principles. But he indicates just the opposite, by precluding a medical-malpractice claim unless administering proper treatment would never produce permanent damage. Assuming that a patient was treated, this requirement eliminates the possibility that another force (such as the natural progression of the broken leg itself), rather than negligence, caused the permanent damage to the leg.
Waddell, A doctor’s view of “opportunity to survive”: Fulton’s assumptions and math are wrong, 86 Mich B J 32, 33 (March 2007).
Justice Maekman opines that in the matter of MCL 600.2912a(2), “there is quite likely some disconnection between what the Legislature may have had in mind and what it actually enacted.” Post at 198 n 15. Yet, despite appearing to believe that the Legislature’s intent may not correlate to the words of MCL 600.2912a(2), Justice Maekman is nevertheless convinced that he can discern the Legislature’s intent from the statutory language. Further, he argues that the Waddell formula is consistent with the statutory language, even while conceding that the Legislature may not have had the concept that was later embodied in Waddell’s formula specifically in mind when it enacted MCL 600.2912a(2). I think it is more than merely possible that the Legislature did not have this concept in mind when it crafted this law; notably, Waddell’s article was not even published until 2007, long after the Legislature amended MCL 600.2912a(2) in 1993. | [
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MOORE, J.
The plaintiff was engaged in the retail lumber and builders’ supply business in the summer of 1920, and it is its claim that it made a contract orally with defendant for the sale of lumber; that Mr. Cope paid cash for the lumber that went into the first house, and desired credit for the lumber that should go into some others that he proposed to build; and that it was agreed that, if his credit references were satisfactory, the plaintiff would furnish the lumber for as many of these small houses as defendant desired, and that the lumber was so furnished for five houses in all. Defendant denies that there was but one contract, and insists that a separate contract was made for the lumber for each house. It is not denied that the lumber was furnished and that it went into the houses on lots mentioned later, and has not all been paid for. This proceeding is to obtain a lien on the houses into which the lumber was put. The trial judge made a decree establishing a lien
“and that the respective amounts due on each of the buildings erected upon said lots are as follows:
Lot No. 699......................$508.13
Lot No. 701...................... 431.88
Lot No. 703...................... 361.72
Lot No. 733...................... 43.15
Lot No. 730...................... 53.12”
and directing a sale in the usual manner. The case is brought into this court by appeal.
The buildings were erected on lots that are not contiguous, and the question is whether the lien can attach to these separate houses in one proceeding.
The trial judge expressed himself in part as follows:
‘‘The purchaser of the property for which a lien is claimed is one individual. I do not see how the interests, of the defendant here appearing and objecting is prejudiced by the fact of one action being brought against him instead of five. I think, on the other hand, he might have a right to complain if five separate and distinct actions had been brought; and there is no question at all but' what if, upon application made, in case five actions had been brought, they would have been united and heard as one; and I know of no reason why this court, proceeding as we are in one case as to the five lots, can not deal with the five just the same as though commenced separately and then combined in one case; because it is now agreed there must not only be a uniting of the parties, but unity of contract in order to entitle the plaintiff to a lien.
“The court is decidedly of the opinion on reviewing the testimony that there was but one contract in this case, as to the five lots involved. Material for the erection of one building was paid for, and that building is not involved in this case. * * *
“I can not conceive of any injury that Mr. Cope has suffered by reason of one action being brought — one lien being on — instead of five.
“A lien may be held to attach to the houses.”
The provisions of the statute involved are found in sections 14796 and 14800, 3 Comp. Laws 1915. These provisions are too long to quote but are easily accessible.
The lien statute was construed in the recent, case of International Mill & Timber Co. v. Kensington Heights Homes Co., 215 Mich. 178, where relief was given though the houses were not erected upon contiguous lots.
We think the judge was right in holding there was but one contract, and that in applying the principles stated in the case just cited to the instant case, that his decree should be sustained.
The decree is affirmed, with costs to the appellee.
McDonald, C. J., and Clark, Bird, Sharpe, Steere, Fellows, and Wiest, JJ., concurred. | [
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Clark, J.
Defendants Boynton owned real estate in Detroit, of a part of which the plaintiffs, Poy and Yee, and nearly 50 others, copartners, trading as Oriental Cafe, were subtenants. The Boyntons contemplated a long-term lease, and requested Dolsen, a real estate agent, to see if he could find some one to make an acceptable offer. He sought to interest the partnership, which was a depositor of the defendant American State Bank. The partners applied to the bank for advice and aid. Defendant Allan, an employee of the bank, was directed to assist. After a conference of the partners, Dolsen and Allan, the partnership made an offer to the Boyntons. The offer was rejected finally and absolutely and the rejection was in no way affected by fraud or collusion of defendants or any of them. Then Allan, having consulted his uncle, defendant Malcomson, made an offer by himself and Malcomson to enter into a lease. The offer was accepted and the lease executed. Allan assigned to Malcomson. Later Malcomson transferred his property including the lease to the defendant Security Trust Company. Plaintiffs seek by this bill to impress a trust upon the lease and for decree that the lease is held for them and that it is theirs. The bill was dismissed. Plaintiffs have appealed.
The promptness of Allan in applying for lease after his clients’ offer had been rejected doubtless made them suspicious and gave color of merit to their claims. But the Boyntons had the undoubted right to refuse plaintiffs’ offer. The reasons for refusal need not be stated. But being refused finally, and such refusal being free from fraud or other infirmity, plaintiffs were not concerned in the lease subsequently made.
The decree is affirmed.
McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Clark, J.
This action was brought to recover damages for the breach of a contract for the sale of sugar by defendant to the plaintiff. Plaintiff had verdict and judgment. Defendant brings error. The contract was made through one Drobisch, a sugar broker. The defense at the trial was that the broker’s duties were discretionary in character and that the contract was voidable for the reason that he had acted for both parties without defendant’s knowledge. Plaintiff contended that the broker exercised no discretion; that he was a mere middleman to bring the parties together, that he had no inconsistent duties, and that therefore he might act for both parties. See 9 C. J. p. 541; 4 R. C. L. p. 275; Friar v. Smith, 120 Mich. 411. The dispute' is of fact not of law.
Whether the broker’s duties were of the character claimed by defendant, or of the character claimed by plaintiff, was submitted to the jury as a question of fact. Defendant insists that on that question it was entitled to a peremptory instruction. There was testimony that the broker’s duties for defendant were to sell sugar at the market price as stated and directed by defendant, and subject to confirmation by defendant. That course was followed here. On such state of facts plaintiff must prevail. But there is other testimony capable of the meaning that the broker was to use his best efforts to get a higher price than the said market price, and that he had, subject to confirmation, such limited discretion as to price. Considering all the evidence, we think defendant may not complain that the question was submitted to the jury.
Complaint is also made of an instruction relative to the burden of proof. On the exceptions before us, as settled by the trial judge, it must be held that counsel for both parties agreed in advance that such instruction should be given. Therefore it will not. be held to be reversible error.
No other question requires discussion.
Judgment affirmed.
McDonald, C. J., and Bird, Sharpe, Steere, Fellows, and Wiest, JJ., concurred. Moore, J., did not sit. | [
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Clark, J.
On July 12, 1924, Arthur Schultz, a boy 17 years old, employed by defendant Kinney Sand company, suffered a fatal accidental personal injury arising out of and in the course of the employment. An award to his dependents is contested on the ground that the employment was illegal, because hazardous, and contrary to Act No. 206, Pub. Acts 1923, and that therefore deceased was not an employee under the act (Comp. Laws Supp. 1922, § 5429). Kruczkowski v. Polonia Publishing Co., 203 Mich. 211.
That the employment was otherwise illegal because of the provisions of the statute first above cited is a question not presented by the record.
In employer’s sand pit, a locomotive crane was used to load sand into railroad cars standing on a side track. The crane was also used in moving and in spotting cars. There is evidence that the boy’s duties were to clean out the cars when received from the railroad, to assist in stripping the land in advance of excavating, to remove roots from the sand after it had been loaded into the cars, and to assist in coaling the crane when it was not in use. The evidence tends to show that he had nothing to do on or about the crane when it was in operation, or with the moving or switching of cars. There was opinion evidence that his work was not hazardous.
Defendants say that it was hazardous, and therefore illegal, as a matter of law. Plaintiffs say that whether hazardous or not was a question of fact, determined in their favor by the department, which determination, having evidence to support it, is conclusive under well-settled law. We think plaintiffs are right. Under many decisions, accessible, and which need not be quoted, it is held that the evidence presented a question of fact and that the finding of the department has evidential support. See Great Lakes Laundry Co. v. Insurance Co., 184 Mich. 294, and cases there cited; Gee v. Brunt, 214 Mich. 679; Wimpari v. Rubicon Lumber Co., 227 Mich. 223.
The award is affirmed.
McDonald, C. J., and Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. Bird, J., did not sit. | [
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McDonald, C. J.
The defendant was convicted on an information charging him with rape on his 20-year old daughter, Vera Black. At the time when the offense is alleged to have been committed the defendant lived with his wife and two children, a son and the daughter, Vera, in the township of Watertown, in the county of Clinton. When arraigned he pleaded not guilty and on the trial, as a witness in his own behalf, he insisted that he was innocent. His case is here on exceptions before sentence. The facts necessary to a discussion of the errors assigned will be stated in the opinion.
The principal question presented by the record relates to the admission of testimony.
“Did the court err in receiving over defendant’s objection testimony as to a complaint made by the prose-cutrix to a neighbor woman in regard to previous acts of rape?”
On direct-examination she testified:
“Q. When did you first make complaint to any one other than your mother about these assaults?
“A. February 4, 1924.
“Q. February 4th, last?
“A. Yes, sir.
“Q. And to whom did you make complaint?
“A. Mrs. L. S. Grisson, the woman I stayed all night With on the 4th.”
The rape for which the defendant was being tried, is alleged to have been committed on the 9th day of February, 1924. The prosecutrix testified to a great many earlier acts of the same character beginning in December, 1919, when she was 16 years of age and continuing at frequent intervals until the time of the act in question. The last assault prior to the one for which he was tried took place the latter part of January, 1924, and the complaint to Mrs. Grisson was on February 4, 1924. When the prosecuting attorney asked the question, “When did you first make complaint to any one other than your mother about these assaults?” he referred to the numerous assaults of which she had testified as having been committed prior to and including that in the latter part of January, 1924. It is a well established rule that in prosecutions for rape and kindred offenses against women the prosecutrix may be asked whether she made complaint of the assault and when and to whom. This rule applies to complaint of previous assaults by the same defendant of the character of that for which he is being tried. Counsel for the defendant do not here question the general rule, but claim that the testimony in this case is not admissible in the absence of some explanation of the delay in making the complaint; that it should be excluded because of the lapse of time between the previous assault in the latter part of January, 1924, and the making of the complaint on the 4th day of February. On this question the courts are not altogether in agreement. Some have held that mere lapse of time is not the test of the admissibility of evidence of this character, that delay in making the complaint goes only to the weight of the evidence and is for the jury; others have inclined to the view that whether the time intervening should exclude the testimony is a question of law for the court. Professor Wigmore suggests that under the theory that the purpose of the testimony is merely to negative the supposed silence of the woman, the fact of complaint at any time should be received. The reason of the rule which permits such testimony would seem to exclude its use unless the complaint is immediately or recently made, or some reasonable explanation given for the delay. It has been said that it is so natural as to be almost inevitable that a woman, upon whom such a crime has been committed, will make an immediate complaint to some of her relatives or other close friends. Justice Grant said in People v. Marrs, 125 Mich. 379, “It is a strong circumstance against a woman that she made no immediate oomplaint.” We think the rule that excludes this testimony unless the complaint is immediate, or there is some explanation for the delay in making it, rests on reason and justice, and should be adhered to by the courts of this State. If the delay is explained it becomes a question for the jury. If not explained it is for the court. In People v. Gage, 62 Mich. 271 (4 Am. St. Rep. 854), the court said:
“The lapse of time occurring after the injury, and before complaint made, is not the test of admissibility of the evidence, but it may be considered as affecting its weight; and when complaint is not made promptly, the delay calls for explanation before the court will admit it.”
It would seem that the first part of the above quotation is inconsistent with the latter part. But we take it that what the court meant in the first statement was that lapse of time alone is not the test because it may be explained and when explained it is for the jury to say what weight shall be given to it as evidence. It is the test unless the delay is excused or explained. Depending on the facts and circumstances of the case there may be a departure from this rule where the female is of tender years or under the age of consent. It should in no other case be extended. In the instant case the prosecutrix clerked in the Grisson store from September, 1923, to February. Some of the assaults were committed during that period. She had an opportunity to complain but did not do so until February 4th. No explanation as to why she did not promptly complain was offered. In the absence of some explanation excusing the delay the court should have excluded her testimony as to the fact of complaint to Mrs. Grisson. Because of this error the conviction must be reversed.
Other errors urged by counsel we do not discuss because they are not apt to arise on a new trial. We have examined them, however, and are of the opinion that they do not constitute reversible error.
The conviction is reversed and a new trial granted.
Bird, Moore, Steere, and Wiest, JJ., concurred with McDonald, C. J. | [
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Wiest, J.
This suit was brought under the Federal employers’ liability act (35 U. S. Stat. p. 65), for a dependent, to recover damages occasioned by the death of George A. Wilson, a section hand in the employ of defendant company. Mr. Wilson was a section workman of long experience and, the morning of January 12, 1921, was engaged with two other section men in distributing tie plates from a hand-car in a curve cut, when a special freight train came into the cut and struck the hand-car just as the workmen had partly removed it from the track and as they jumped away, and Mr. Wilson who ran in the direction the train was going was struck by flying pieces of the smashed hand-car and injured and died March 27, 1921. At the close of plaintiff’s proofs the trial judge held no negligence had been shown and directed a verdict for defendant.
The case is here by writ of error, and in a broad way presents the question of whether defendant owed these section men the duty of giving warning by whistle of the approach of the train to the curve cut. There is no evidence the train crew had knowledge that the section crew were in the cut. The section men had no knowledge the train was due at that time as it was a special freight. Section men perform their work in places requiring constant watchfulness on their part; they know special trains, are operated; they are aware of the schedule time of regular trains but have no means of knowing when special trains may appear beyond that of sight and hearing and a system of signals. The company maintains a system of signals, a view of which was available from the bank of the cut and actually taken by Mr. Wilson who reported the block clear about three minutes before the accident. The block signal would disclose a train within about two andi a half miles of the place oí accident.
The accident happened about 8:30 o’clock of a “sharp, cold, clear, crisp morning” with some wind, and no snow on the ground. At the trial plaintiff was permitted to plead the following rule of defendant company:
“Extra and delayed regular trains must sound the whistle as per rule 14-L when approaching curves and obscure places, and frequently during fogs and heavy snow storms, to warn section men, bridge men, and others operating motor cars.”
This requires us to turn to Eule 14-L, which provided :
“Two long and two short blasts approaching public crossings at grade and approaching curves, as a warning to section men and others operating motor cars.”
Does this apply only to section men and others operating motor cars or is it inclusive of section men working with hand-cars?
Plaintiff’s counsel insist it is a rule of good railroading and, while the doctrine of ejusdem generis may apply to the last half of the rule, when there are fogs and heavy snow storms, requiring frequent whistling, “the first part of the rule requires whistling when approaching curves and obscure places, without regard to the class of the workman.” We do not think the rule was drawn to be so split; it provides for a warning under designated circumstances for the protection of a specified class.
Defendant’s counsel say:
“As to the language, it is so plain that no argument is attempted to give meaning to the clause specifying the class of persons for whose protection the whistle is to be blown. It is an arbitrary, strained and unnatural construction which attempts to disconnect the first part of the rule from the last — to apply the rule to ‘curves and obscure places’ and not to fogs and heavy snow storms.”
Is there any incoherence in the language of the rule? We think not. The question is not whether the rule should grant the same measure of protection by warning to all section men, operating motor cars or handcars, but whether it in terms limits its application to employees operating motor cars. We may not be able to grasp the full sense of such a limitation, but if it is so limited we cannot extend its scope. At first the writer was inclined to think the rule was inclusive of section men operating a hand-car, but, sensing the basis for this thought to be a humanitarian impulse rather than consideration of the restrictive terms of the rule, was led, upon reflection, to the opposite con- elusion, and fortified therein by remembrance of the well established rule that section men are required to take care of themselves and can readily do so except when operating a motor car. There exists a reason for giving this protection to employees while operating a motor car which does not carry to slow moving, comparatively noiseless and easily removable instru-mentalities. Motor cars are capable of high speed, bring employees quickly into danger zones, make considerable noise and are not easily removed from the track. If the rule had merely designated the class to be given notice by whistle, as employees operating motor cars, there would be no thought of its being inclusive of section men operating hand-cars. The designation in the rule of the class as section men and bridge men did not require the warning as to even them except in the operation of motor cars. It must be held that the rule relates to section men and others operating motor cars. This, of course, has nothing to do with discovery of peril of section men in time to adopt measures and adapt means to avoid injury to them.
This eliminates the company rule and brings us to the question of whether the evidence, considered in its most favorable aspect, shows negligence on the part of defendant. The Federal act leaves the question of negligence of defendant to be determined in accordance with common-law rules. It, therefore, must appear there was a duty owed the injured person and a violation of such duty resulting in the injury complained of. What duty did defendant owe section men engaged in work requiring use of the railroad track out in the country? Plaintiff insists on the right to notice of an approaching train when view thereof is cut off by reason of a curve in a deep cut. Defendant contends there exists no such duty; that section men, working on a railroad track over which trains are expected to pass with speed between stations, owe it to themselves and to the company to watch out for trains and not to rely at all upon the; giving of signals. The question so presented is not new. There runs through plaintiff’s claim and argument the vein of the humanitarian doctrine, and while this is quite appealing in a broad sense, it overlooks the fact that this doctrine avails little unless it appears the peril of the section hand was discovered in season to have averted injury to him. Such does not appear to be this case. The train was discovered by th& section men when about 600 feet away, and seeing it they tried to remove the hand-car. Certainly the engineer was in no better position to determine that this could not be done than the men who were trying to do it, and besides, there is no evidence the train could have been stopped in time after peril of the section men was discovered.
Under the Federal employers’ liability act the defense of assumption of risk remains as at common law except in cases of violation of a Federal statute' enacted for the safety of employees. Southern Railway Co. v. Crockett, 234 U. S. 725 (34 Sup. Ct. 897).
4 Elliott on Railroads (3d Ed.), § 1862, states, with citation of numerous cases:
_ “Ordinarily section men or trackmen assume the risk incident to the running of trains, whether extra trains or trains running on schedule time. Such employees are bound to know that regular trains may be delayed and pass at uncertain intervals and that wild or extra trains may be sent over the road and they assume the risk of danger therefrom, except in cases where by some act or conduct the employer has impliedly or expressly represented that no wild or extra trains shall imperil the safety of such employees. It has also been held that the fact the train was running at an unusual rate of speed at the place of the injury and in violation of a city ordinance does not relieve a section man from the rule that such employees assume the risk of wild as well as regular trains running over the tracks at all times at any rate of speed, without warning except from the noise of the train, and by the customary signals.”
This court has had occasion to state the rule of assumed risk incident to section men working on railroad tracks. In Barnhart v. Railroad Co., 188 Mich. 537, it was said of the work of section men:
‘When plaintiff engaged in this line of work he knew that it was more or less hazardous by reason of the frequent operation of trains, and the law placed upon him the duty of exercising reasonable care to protect himself against injury. Schaible v. Railway Co., 97 Mich. 318 (21 L. R. A. 660); Aerkfetz v. Humphreys, 145 U. S. 418 (12 Sup. Ct. 835); Daly v. Railway Co., 105 Mich. 193; Carlson v. Railroad Co., 120 Mich. 481.”
See, also, Tober v. Railroad Co., 210 Mich. 129; Riccio v. Railroad Co., 189 Mass. 358 (75 N. E. 704); Woods v. Railroad Co. (Mo.), (187 S. W. 11).
The facts in the Missouri case closely parallel the facts in this case. We do not adopt the holding of the Missouri court with reference to contributory negligence in trying to remove the hand-car, for that question is not reached under the holding we make, and besides, under the Federal act, contributory negligence unless it equals defendant’s negligence goes in mitigation of damages and does not defeat a right of action thereunder.
Plaintiff made no case. Judgment affirmed, with costs to defendant.
Clark, Sharpe, Steere, and Fellows, JJ., concurred with Wiest, J. | [
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Bird, J.
Plaintiff’s husband, Dick Helder, received an accident in the plant of the Luce Furniture Company, and died as a result thereof on February 2, 1920. An application was made for a death award and was refused by the arbitration board. Later the matter was taken in hand by defendant as attorney. He caused the body of Helder to be exhumed and a post mortem examination to be held. He afterwards took an appeal to the full board and it allowed an award of $14 a week for 300 weeks. After receiving compensation for a time plaintiff applied for a lump sum settlement. This was granted. She received her money and paid defendant for his services, which amounted to nearly half of the amount she received. His charges, however, included other services. The plaintiff was married a little less than a year- after she settled with defendant, and her husband thought she had paid defendant more than she should. He came to Lansing and caused a petition to be made and filed with the compensation board, praying that it fix defendant’s fees. The board acted upon the petition and fixed defendant’s fee at the sum of $354, and ordered him to refund the difference. From this order defendant brings certiorari.
Defendant argues that the industrial accident board had no jurisdiction to fix his fees, and cites the following statute, which is a recent amendment to the compensation law:
“The cost of such arbitration, including the cost of taking stenographic notes of the testimony presented at such hearing, not exceeding, however, the taxable costs allowed in suits at law in the circuit courts of this State, shall be fixed by the board and paid by the State as the other expenses of the State are paid. The fees and payment thereof of all attorneys and physicians for services under this act shall be subject to the approval of the industrial accident board. In the event of disagreement between the parties as to the fees for services of attorneys and physicians, either party may apply to the board for a hearing in accordance with the terms of section fourteen, part three, of the act.” Comp Laws Supp. 1922, § 5463.
Counsel argues that the board has no jurisdiction “except in the event of disagreement between the parties,” and that there was no disagreement between the parties in this case. It was evidently the intention of the legislature that the board should have no jurisdiction in such matters unless there was a disagreement between the parties. It simply provided a method for settling a disagreement over lawyers’ and doctors’ fees if there were one. The language is too plain to need any construction. A reading of the record convinces us that there was no disagreement between the parties. When the lump sum settlement was made and paid plaintiff settled with defendant and expressed herself as well pleased over the outcome. She had reason to be pleased because she would have received nothing had it not been for defendant’s efforts. Ten months elapsed and plaintiff remarried. Her new husband thought she had paid defendant too much. He went to see the board. They gave him a blank and he took it to a lawyer to fill out. It was put up to her and she signed it and it was filed. We have read her testimony very carefully and she does not say that there is now any dissatisfaction or disagreement between her and the defendant. The disagreement, if any exists, is between the husband of plaintiff and defendant. This is not important as it is not his matter.
We think the industrial accident board was without jurisdiction to fix the fees under all the circumstances of the case. The award will be set aside, with costs to the defendant.
McDonald, C. J., and Clark, Sharpe, Moore, Steere, and Fellows, JJ., concurred. Wiest, J., did not sit. | [
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Steere, J.
This bill -was'filed to foreclose a $15,000 mortgage given to secure part of the purchase price for a property located at the northwest corner of Cherry street and College avenue in the city of Grand Rapids, Michigan, known as the “Fox homestead,” and sometimes called the “castle” owing to the size and architecture of a pretentious stone residence located upon it. Although indicated interests led to making all the named parties defendants, Mortimer C. Nichols is conceded to be the real defendant in interest and may be referred to as the defendant in discussion of the case. Plaintiff Goodspeed had become owner of the Fox homestead and being desirous of selling it so informed Mr. Howard Brown, a real estate dealer and broker with offices in the Michigan Trust building in Grand Rapids, requested his services in disposing of it and told him the price he asked. Some time later Brown met and called the attention of defendant Mortimer C. Nichols, of Hastings, Michigan, to this property and interested him in it. After examining the property, which had been vacant for some time, defendant submitted an offer to Brown of $22,500 for the place. Brown submitted this to plaintiff who refused to accept the offer or to take less than his price of $25,000. After considering and discussing the matter with Brown for some time, defendant finally went to Brown’s office and made a further offer agreeing to pay plaintiff’s price on certain terms. Brown reduced the offer to writing on a form of an “authorized agreement of the Grand Rapids real estate board” which, omitting formal parts and description of the property, reads as follows:
“The terms of purchase to be as follows: $10,000 on delivery of warranty deed, and balance to be paid by mortgage back for $15,000, interest at six (6%) per cent, per annum payable semi-annually, terms to be mutually agreed upon.
“It is understood that the plumbing, heating and lighting system in above described premises is in proper usable condition.
“An abstract showing good title written up to date, also abstract of taxes to be furnished me clear of expense.
“I hereby agree to give to Howard Brown one day to get the owner’s signature to the written acceptance of this proposition appearing below, which, when signed, will constitute a binding agreement between purchaser and seller, and herewith deposit $1,000 as earnest money to apply on the purchase price. If proposition is not accepted or the title is not good this amount to be refunded, otherwise to be retained.
“Sale to be closed on or before August 15, 1922.”
After defendant had signed it and made the deposit Brown promptly submitted the proposed agreement to plaintiff for his acceptance and signature. Brown testified that plaintiff first objected to the provision relative to the plumbing, heating and lighting system being “in proper usable condition,” and he discussed the matter with him at length, pointing out that the building had been vacant so long nobody knew the precise condition of those three equipments, defendant had insisted on protection from the necessity of any unanticipated elaborate outlay upon them, and made that clause a condition of his paying the full price of $25,000 which plaintiff demanded for the property; that after a full discussion plaintiff “finally said, ‘All right, I will accept that proposition,’ which he did” and signed the agreement. Apparently following the authorized form used this addenda or postscript appears on the instrument over plaintiff’s signature:
“The above proposition is hereby accepted. I also agree to pay Howard Brown a commission of $950 for negotiating this sale, but if not closed on account of purchaser’s default the commission shall not exceed the amount of the deposit.”
This writing so executed constituted a binding con* tract of. bargain and sale between the parties for the real estate therein described, which both parties .thereafter recognized and acted upon. Nichols then took possession of the unoccupied property he had contracted for, with a payment of $1,000 down, and took steps to make repairs upon the long-vacant “castle” and put it in habitable condition. On overhauling the old plumbing, heating and lighting equipment in it he found that it was necessary to make various repairs upon the same to put it in proper usable condition, which he did and kept separate accounts of the cost of labor and material applied to that purpose.
On August 12, 1922, three days before the time limited, the papers were in Brown’s hands to close the sale and Nichols paid Brown $9,000 more, signed a note to Goodspeed for $15,000 secured by a mortgage to him on the property and received from Brown in exchange therefor a deed of the property executed by Goodspeed, both of which instruments were duly recorded. He at the same time gave Brown the bills he had for necessary repairs to put the plumbing, heating and lighting system in proper suitable condition. He alleges in his sworn answer and cross-bill that he then demurred to paying the full balance of the purchase price and giving the mortgage in question until the repairs were completed, costs therefor allowed by plaintiff and deducted from the purchase price, but that—
“Howard Brown, the agent of the plaintiff, then said to the defendants that it would be best to pay the balance of the purchase price, take the deed and give the mortgage for the foreclosure of which this suit is brought and when the repairs were completed that the plaintiff would then upon the presentation of the bill therefor pay the defendants what they expended in the repair of the plumbing, heating and lighting system,” etc.
The transaction took place in Brown’s office. Good-speed was not present. His answer to this allegation . is a denial that any such demurrer was ever made, to or any such assurance given by him or his authorized agent. Nichols did not know and never saw Good-speed until long after these transactions were completed, although, as he later learned, Goodspeed lived but a comparatively short distance from the Fox homestead, in the same block. On August 14, 1922, Brown reported in writing to Goodspeed that he had closed the sale of the property to Nichols according to the contract, saying in part:
“I am inclosing herewith bills for actual necessities to boiler, water and roof repairing which Mr. Nichols has kept down to the very minimum, and as per agreement is forwarding to you for payment.”
On August 23, 1922, Goodspeed in acknowledging the report said in part:
“As I cannot see where these bills come under any agreement of mine, I am returning same to you. There might be a very few items in the Nyburg bill that could be chargeable to the heating and plumbing system, but in any event it could not be for any more than just joining together the drainage connections.”
Brown, who testified that he visited the “castle” on various occasions while repairs were being made, wrote a strong protest to Goodspeed’s refusal to recognize the bills, calling attention to the provisions of the contract as to the plumbing, heating and lighting system, stated what he personally saw of the condition of the equipment, including “14 leaks in heating pipes under the cement,” and urged him not to repudiate what had been understanding^ agreed to both orally and in writing, saying in conclusion:
“I earnestly hope you will reconsider this matter and advise my office to forward you the bills above mentioned for payment as I earnestly wish to avoid any difficulty between you and Mr. Nichols.”
Goodspeed stood steadfast in his refusal to admit liability for any of the bills for repairs, and Nichols refrained from paying two installments of interest on the note and mortgage when they fell due. Plaintiff then elected to declare the whole amount due under the provisions of the mortgage and filed this bill, on October 24, 1923, to foreclose the same; Defendant answered setting up the provision in the contract relative to plumbing, heating and lighting, the necessary repairs made to put them in proper usable condition, and plaintiff’s refusal to recognize any responsibility therefor, admitted that interest past due on the mortgage had not been paid, and alleged by way of cross-bill that he was ready, able and willing to pay the full amount due on said mortgage with interest as soon as plaintiff would recognize and pay or give credit for the amount necessarily expended by him for repairs, and which plaintiff had heretofore failed and refused to do, concluding with a prayer for an accounting and general relief. Plaintiff answered defendant’s cross-bill issuably, the most material part of his answer being a denial that Brown was his agent “or had any authority to act for him except as a broker for the purpose of bringing the parties together,” and that defendant’s claim is foreclosed by voluntary payment of the agreed portion of the purchase price, giving a mortgage for the balance and accepting a deed of the property. The lower court heard the proofs of the parties on their bill and cross-bill, found the total sum due on defendant’s note and mortgage was $16,740.27, that defendant had neces sarily expended on the plumbing, heating and lighting system $595.04 to put the same in proper usable condition, the interest on which at 5 per cent, from the time bills were rendered amounted to $52.24, making a total of $647.28 which he was entitled to credit for under the agreement, and granted plaintiff a decree of foreclosure for the balance of $16,092.99, without costs to either party, from which plaintiff appealed.
Most of defendant’s proofs were admitted against plaintiff’s objection, followed at close of the testimony by a motion to strike the same out, on the theory that the preliminary agreement or contract of purchase gave defendant no right to enter into possession of the premises to make repairs and he was a trespasser in so doing; that Brown was not the agent of plaintiff and had no authority to act for him as his agent in any respect, except as a broker in bringing the parties together; that the agreement of purchase and sale was merged in the deed, which then became conclusive evidence of defendant’s rights and no action at law or suit in equity could thereafter be maintained upon the extinguished agreement.
The claim that Nichols was a trespasser and is precluded from any rights the agreement might give him because he began the necessary repairs in question before receiving his deed impresses us as a farfetched technicality under the undisputed circumstances shown here. There is no claim of fraud, misrepresentation or concealment on the part of either party, in making this agreement. Nichols did not know and never met Goodspeed until after the entire transaction was completed and he had received a deed of the property. Brown had approached him on the subject as Goodspeed’s agent authorized to sell him the property at a certain price. Nichols dealt directly with him as such all the way through, received the refusal of his first offer and Goodspeed’s .signed ac ceptance of his second offer from him, paid him $10,000 down on the purchase price, delivered to him a note and mortgage for the balance and received from him his deed, all of which Goodspeed recognized and ratified. When he started to make the repairs in question he had paid $1,000 on the property and bound himself by a written agreement, which Good-speed had also accepted and signed, to buy it at Good-speed’s price and was openly on the premises repairing the building when the sale was closed, with the actual knowledge and consent of Brown, the only man he had dealt with, and who visited the place on various occasions while the work was being done. He had mechanics at work there, going in and out. There is no claim of concealment or secret entry. It is not a violent assumption that Goodspeed who lived near there in the same block, though then unknown to Nichols, had knowledge of what was going on and acquiesced in it. But whether he did or not, it is immaterial under the undisputed facts in the case just when Nichols discovered the system in question was not in proper and usable condition after he had contracted to buy the property, provided he acted with reasonable promptness in notifying plaintiff after making the discovery. He was bound by his agreement to purchase the property whatever the condition of the old plumbing, heating and lighting system might be. Goodspeed inadvertently recognized his obligations under the agreement to a degree when he wrote Brown repudiating the bills sent him, saying: “There might be a very few items in the Nyburg bill that could be chargeable to the heating and plumbing system,”— but passing that, the agreement which he signed plainly makes him liable for the reasonable and necessary cost of putting the conveniences mentioned in proper usable condition.
As to plaintiff’s claim of merger, it may be con ceded that a deed made in full execution of a contract for the sale of land is presumed to merge the provisions of a preceding contract pursuant to which it is made, including all prior negotiations and agreements leading up to execution of the deed, with the long recognized exception that—
“Where, however, the deed constitutes only a part performance of the preceding contract, other distinct and unperformed provisions of the contract are not merged in it. And where a contract of sale provides for the performance of acts other than the conveyance, it remains in force as to such other acts until full performance.” 18 C. J. p. 271.
The purpose of a deed is to convey title to land, not to describe the terms of a preceding contract under which the land was sold. Its recognized office as a legal instrument is to pass the title to the grantee. To that extent Goodspeed fully fulfilled his obligations under the agreement to convey a good title, and thereby merged in the deed he gave all matters in the agreement relating to the title, but it did not merge the distinct and unperformed provision relating to the repairs under consideration here. The provision of the contract is neither contradictory of nor inconsistent with the deed.
Plaintiff began his foreclosure proceeding by suit in chancery. Under the situation presented here, a court of equity will look through the deed to the contract in performance of which it is given and, if it contains other valid, relevant provisions not covered by the deed nor inconsistent with it, may enforce the same. This is such a case. We find nothing in the cases cited for plaintiff to the contrary.
The decree will stand affirmed, with costs of this court to defendant.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Fellows, and Wiest, JJ., concurred. | [
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Moore, J.
The defendant was sentenced as follows:
“Respondent standing convicted by the verdict of the jury of the crime of illegal transportation of intoxicating liquor as shown by the record thereof, and having been on motion of the prosecuting attorney brought to the bar of the court for sentence, and having there been asked if he had anything to say why sentence should not be pronounced against him, and alleging no reason to the contrary. Now, therefore, it is considered by the court now here that the said respondent be confined in the Michigan reformatory at Ionia at hard labor for a period of not to exceed one year and not less than eleven months from and including this day and in the opinion of the court he should serve one year.”
The case is brought into this court by writ of error. There are but two important questions in the case. It is said:
“1. The court erred in denying respondent’s motion to quash the information and suppress the evidence made and heard prior to the trial of said cause, and in denying respondent’s motion in arrest of judgment.”
It was the claim of the people and testimony was given in support of the claim that a day or two prior to April 19, 1924, two deputy sheriffs were told by one Joseph Thompson, whom they knew, that defendant was going to deliver a load of liquor to the Central Welding Company plant, in North Lansing, in a blue Olds roadster at about 8 o’clock on that evening. The officers concealed themselves in that neighborhood. A little after 8 o’clock Ver Planck drove up and made several trips into the building. He drove away. Brown remained alone near the entrance to the plant. Shortly before 9 o’clock defendant reappeared driving an Olds car. He went into the building. Brown approached the car. Ver Planck came out carrying a grip and a gunny sack and threw them into the rear end of the car. Brown smelled liquor about the car and arrested Ver Planck. The officer found a few drops of liquor in a bottle on the front seat, and some whisky spilled on some newspapers in the rear. He took the defendant and his car to the city hall. There the car was searched thoroughly and in a locked compartment just back of the driver’s seat was found three bottles of liquor. Two of them contained wine and the other one grain alcohol. All were intoxicating liquors.
These claims were disputed by the defendant but 'were fairly submitted to the jury in am impartial charge, and the jury found a verdict of guilty. We think the verdict was justified by the proofs, and the following authorities: People v. Case, 220 Mich. 379 (27 A. L. R. 686); People v. Guertins, 224 Mich. 8; People v. Ward, 226 Mich. 45; People v. Kamhout, 227 Mich. 172.
2. Was the court justified in pronouncing the sentence he gave defendant? We quote from the brief of the people:
“It is agreed that the sentence of respondent for a period of eleven months to one year was irregular, in that the minimum should have been six months. However, the sentence is valid and effectual to the extent of the lawful penalty (3 Comp. Laws 1915, § 15857).”
The case is remanded, with direction to the circuit judge to enter a proper sentence.
McDonald, C. J., and Clark, Bird, Sharpe, Steere, Fellows, and Wiest, JJ., concurred. | [
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MOORE, J.
This action is brought to recover upon two notes set out in the declaration. As to the one for $176.98, no defense is made except that it bore no Federal revenue stamps. It is admitted that if the absence of such stamps is not a sufficient defense the plaintiff is entitled to recover judgment against the defendant for $202.77 with costs of the circuit court. The defense herein is limited to the note for $1,457, which also was unstamped. The defendant by affidavit and notice accompanying his amended plea denied that he executed this note and that there was any consideration at all for it. The court overruled the defendant’s motion for a directed verdict' in his favor on the ground that both notes bore no Federal revenue stamps; directed a verdict in the plaintiff’s favor for the amount of the first note and submitted to the jury for its determination the questions of the execution by the defendant of the second note and the consideration therefor. The jury returned a verdict for the aniount of both notes, with interest, upon which verdict judgment was duly entered.
The questions involved in this appeal are stated by counsel for appellant:
(1) Can an action at law be maintained upon the promissory notes declared upon, even though they do not bear Federal revenue stamps?
(2) Should the defendant have been allowed to testify as to what he would have done with the proceeds of such second note if he had received them?
(3) Should a witness be allowed to testify as to ■the probable meaning of writings which are not ambiguous or whose ambiguity, if any, is patent?
(4) May the court submit to the jury the question as to whether or not the plaintiff has made out his case as to consideration for the note in question, where evidence has been introduced by the defendant which the court admits tends to show want of consideration * * * in the absence of any evidence whatever that there was consideration other than the form of the instrument itself?
(5) Presented a similar question to 4.
We will take up these questions in the same order:
1. Counsel do not press their contention in view of the decisions in Sammons v. Halloway, 21 Mich. 162 (4 Am. Rep. 465); Amos-Richia v. Insurance Co., 143 Mich. 684; Cole v. Ralph, 252 U. S. 286 (40 Sup. Ct. 321), but content themselves by raising the question. The cases cited justify the ruling of the circuit judge.
2. We think the trial judge was quite, right in holding it was immaterial what the defendant would have done with the proceeds of the second note had he received the money.
3. The writings referred to were claimed by the defendant to be receipts. We quote one of them:
“M. Manuel Helli
Ironwood, Mich., Nov. 23, 1918.
In account with
James A. Sullivan
General Insurance
Fire, Life, Boiler, Plate Glass, Accident, Employer’s Liability and Surety Bonds.
All Bills Payable in 10 Days.
___Dr._^
Date Policy No. Company Property Ins. Amt. Rate Premium
Sept. 14/18
Loan of 350 from W. Gleason Due 9/21/18
Pd. 9/30/18 3 00
Extension to 9/30/18 1 50
J. A. Sullivan services 2 50
Loan of 350 from T. F. Egan Due 9/28/18
Pd.10/23/18 4 00
Extension to 10/23/18 4 00
J. A. Sullivan, services 5 00
Loan of 300 from A. M. Mclver Due 9/28/18
Pd. 10/31/18 4 00
Extension to 10/31/18 4 00
J. A. Sullivan, services 5 00
33 00
Please return this bill for receipt with remittance.”
The other paper was similar to this one. Because of the claim of defendant that this was a receipt for $1,000 we think it was competent to show that it was simply a bill for commissions and services amounting to $33. Paddock v. Hatch, 169 Mich. 95; Brusseau v. Potter’s Estate, 217 Mich. 165.
4 and 5. The contention of counsel is based upon the testimony of defendant on cross-examination that he had not borrowed any money from Mr. Sullivan, except what the papers we have already referred to which defendant called receipts covered. This contention overlooks the fact that officers of the bank where defendant did his banking business testified that the disputed note bore defendant’s signature, and the note itself recited it was given for value received.
The judge charged the jury:
“As to this note you have two main questions to decide: first, whether or not the defendant executed the note, and second, whether or not there ivas any consideration for the note.
“The burden of proof is upon the plaintiff to establish both of those propositions by a fair preponderance of the evidence before she can recover upon the note. When 1 say by a fair preponderance of the evidence I mean by the greater weight of the evidence. * * *
“Now ordinarily there is a presumption of law that when one gives to another a promissory note there was a sufficient and valuable consideration for the same. However, when as in this case, a person sued upon a note sets up the defense of want of consideration and introduces testimony tending to show want of consideration, then the burden of proof is upon the plaintiff to show that there was consideration. Now, in this case the defendant has introduced certain testimony which he claims tends to show that there was no consideration for the note. Whether or not you will accept and believe that testimony is a matter for you to determine. The defendant claims that it tends to disprove consideration. The plaintiff claims that the testimony is unworthy of belief and should not be believed by you. It is for you to say, after a consideration of the evidence, whether or not you believe this testimony; and the burden of proof is upon the plaintiff to establish that there was consideration for the note, and the presumption I have heretofore mentioned is offset by the testimony introduced by the defendant and cannot be used in the plaintiff’s favor, unless the evidence is equally balanced, in which case the presumption will turn the scales in favor of the plaintiff.”
The other questions raised by counsel have been considered, but do not call for discussion. We find no reversible error.
Judgment is affirmed, with costs to the appellee.
McDonald, C. J., and Clark, Bird, Sharpe, Steere, Fellows, and Wiest, JJ., concurred. | [
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Moore, J.
In 1898, by warranty deed from the owner duly recorded, there was conveyed to William Schutmaat, the husband of the plaintiff Dena Schut-maat, and the father of the other plaintiffs,' 130 acres of land in the east half of section 9, Valley township, Allegan county, Michigan, and also a strip or parcel of land 3 rods in width to be used as a road, commencing at a point on the west line of the northwest quarter of the southwest quarter of section 10, about 10 rods south of the northwest corner of said land, and running thence northeasterly to the northeast corner of said described land, following the course of an old road formerly used as a lumber road and then used by Howard Phillips.
John C. Stein obtained a deed to the land across which this 3 rod strip was located. In 1912, Mr. Stein by contract sold it to Mrs. Enck, and in 1922 she transferred her contract to Mrs. Mellies, one of the defendants. Mr. Leach, one of the defendants, looked after the land for Mrs. Mellies. The accompanying blue print, though not drawn to a scale, will help understand the situation.
After Mrs. Mellies obtained her land contract, trouble arose about this right of way and this litigation followed. The trial judge found that the original right of way was located south of the buildings now on the Mellies land, but he also found, we quote from his opinion:
“The proofs are not clear upon the point, but either by verbal consent or by acquiescence, that part of the right of way extending east from the rear of the barn was closed and the plaintiffs used the west part of the right of way up to a ravine or depression, thence up the ravine to the north line of the Mellies property and thence east along the north line of the Mellies
property to the public highway, and also at times used the west portion of the right of way up to near the west side of the barn, thence north to the north line of the Mellies property, thence east to the public highway. The defendants objected to the use of this portion of the Mellies land as a part of the right of way, that is the land near the barn.
“Plaintiffs are entitled to a right of way over the Mellies lands, but they have not established a right to the use of a right of way near the barn on the west side thereof. Such a right of way would extend through the land that was formerly enclosed as a barnyard and the only land that is available for a barnyard.
“Under the pleadings and proofs in this case a right of way will be established as commencing at the northeast corner of the northwest quarter of the southwest quarter of section 10, town 2 north, range 14 west, thence west to the ravine, then southwest along the ravine to the right of way originally established, thence westerly along the right of way as originally established to the lands of the plaintiff. The right of way to be 2 rods in width to the ravine, and then 3 rods in width.”
A decree was made accordingly.
Counsel for appellants insists that the right of way as established in. the decree is up a sandy S shaped curve that is not according to the description in the deed, and is not where it was located by the oral arrangement which was entered into by the parties.
We quote from the brief of appellants’ counsel:
“Plaintiffs’ lands are conceded to be worth upwards of $5,000. By deed giving them title, they obtained a 3 rod strip to be used as a road. The value of their property depends largely upon the ease with which crops can be moved out. Because of the long and easy grade up the hill to the point ‘C’ and of the improvements which have been made on this road from year to year, it has become a valuable right appurtenant to the 130 acres.
“We deny the right of the court under the circumstances of this case, to take it from us and to give us in lieu thereof a right of way a rod narrower up a steep sand hill with an S curve, subject to washouts, a road which, because of the nature of the soil and its location, can never be made permanently suitable for the passage of automobiles, trucks or farm loads.
“Defendants purchased with constructive notice of the location of the old Phillips road and with actual notice that it extended up the hill to the point ‘C.’ By what authority can the court take from us the land obtained by grant, substitute therefor the gully road and assure us that neither Stein, who is the holder of the legal title and not a party to this suit, nor some person to whom he may hereafter sell on contract, after the possible surrender or forfeiture of the Mellies contract, will not conclude that we are not entitled to the gully road and institute proceedings to send us back to the old Phillips road.”
Counsel for the appellees says, we quote from the brief:
“The only question involved in this case is this: Should the plaintiffs be required to proceed west from gate No. 5 to road No. 3, or should they be allowed to turn south at gate No. 5 and thus deprive defendants of the barnyard between the buildings and road No. 3?
“When the plaintiffs adopted as their right of way the_ road north of the buildings, the defendants and their grantors certainly had the right to assume that the plaintiffs intended to use such right of way permanently, and to arrange their buildings and fences on the theory that the plaintiffs would never insist upon using a right of way south of the defendants’ buildings.
“The plaintiffs have come into a court of equity asking equitable relief; therefore they must be willing to grant equity.”
and insist the plaintiffs should be content with the decree as made.
We have already quoted the provisions of the deed and the record shows beyond peradventure that the trial judge was quite right in holding that the right of way was originally located south of the buildings.
How did the location come to be changed? The testimony is not as clear as might be desired. Mr. Frank Bassett who had known the premises for 40 years testified in part:
“Just a little south of the house at the southwest corner of the bam and on an angle a little bit west and then down to the bank of the hill I was putting up a fence when Mr. Schutmaat came down in the morning. He forbid us putting a fence across the road there that they were using. They were using the road south of the barn, that is the road south of the house too. Then he went to see Mr. Stein, and they both came back. They made arrangements to go just back of the house for the present time, around by the barn, west of the bam. They came through this lane to gate 5 and followed this road west of the barn. I was there when they did that, that is when I worked there, that was before I lived there and I was pulling stumps for Mr. Stein and Hathaway. That was when the road was changed.”
Mr. Stein was sworn as a witness by the defendant, and did not deny this statement, though he did testify that he had no recollection of any such talk. As might be expected the testimony is contradictory, but the great weight of the testimony is that for a number of years prior to the beginning of this suit road number two was the one used by the plaintiffs.
At this point it may be well to quote some of the testimony of defendant Leach. On direct-examination he said:
“I first became acquainted with this place in 1922. I placed trees and did some plowing in this road in south and west of the barn; that would be south and east of the old foundation, up toward the top of the hill from the old foundation. I did that to keep them out of there. That was to keep them from turning south after coming through the gate and going by the barn. They had no business there. * * * My object in felling these trees across the road east of the old foundation was to force Schutmaat to take the other road. That is the way we bought it. There never anybody said anything to me that they had a road there. I supposed I could cut it off if I wanted to.”
On cross-examination:
“We bought of Mrs. Enck. We looked at the place before we bought it.
“Q. When you went over there to look at that place before you bought it, couldn’t you see west of where you cut those trees down that they had been drawing in dirt to make a road?
“A. No, sir; I didn’t pay any attention to those roads in there; we didn’t buy it that way.
“Q. Couldn’t you see any place where anybody traveled, where any road had gone through that ravine?
“A. There has been all kinds of roads all over; they still drive all over the whole 20 acres.
“Q. You could see plain enough when you went on that place to look at it with a view of buying it that road where you afterwards plowed it up?
“A. There was an old road. There had been an old road there for years but we didn’t buy it that way; we bought it with the road on the north side.
“Q. You could see the evidence of the old road when you bought it?
“A. That makes no difference.
“Q. Could you or couldn’t you see it?
“A. I didn’t pay any attention.
“Q. Did you know it was there?
“A. I didn’t pay any attention to that.
“Q. Anyone going down there now can see it has been there for a good many years ?
“A. If he can see, I suppose he can. I didn’t dig across the road on the flats. Simon Young threw some fence posts in the ditch and dammed it up, but I threw them out.
“Q. What business have you going across there?
“A. I have got land in there.
“Q. Look at this diagram?
“A. I don’t know anything about that.
“Q. Just look at it?
“A. I ain’t going to look at it at all.
“Mr. Montague: Look at it, Tom.
“A. No, I don’t know anything about it no more than that book. I ain’t going to bother.
“Q. I will explain it.
“A. I don’t want you to.”
Lydia A. Enck was sworn as a witness by the defendants. Her attention was called to a letter written to her by George Schutmaat in 1918 which she received, and she testified that her uncle, Charles A. Watz, replied to it at her request. In the letter appears the following:
“As far as your right of way through our land concerns, we are not particular which way your going down. I was talking to your father about it about 3 years ago and he told us it did not make any difference just as long as you could go up and down and Mr. Stein told us that he had everything settled with Mr. Schutmaat and had the papers to that effect. But of course if you want to [go] the old way why it will be o. k. to us so long you putt the fences and gates there.”
It is not shown that when the arrangement was .made between the older Schutmaat and Mr. Stein that any writing was made, and the conclusion is irresistible that the parties were trying to make an arrangement that should be agreeable to both, and that acting upon the agreement the parties for 10 or 12 years acquiesced in the use of road number 2 until Mr. Leach took the action indicated in his testimony.
The plaintiffs by what was done did not lose the right obtained through the deeds which we have quoted. See Lathrop v. Elsner, 93 Mich. 599; Ives v. Edison, 124 Mich. 402 (50 L. R. A. 134, 83 Am. St. Rep. 329); Murphy Chair Co. v. Radiator Co., 172 Mich, at p. 29; McMorran Milling Co. v. Railway Co., 210 Mich. 381; Goodman v. Brenner, 219 Mich. 55.
It is said that John C. Stein is the owner of the record title and that Mrs. Mellies’ interest in the land is through a purchase by land contract.
We now quote from the brief of counsel for the appellants :
“Plaintiffs are entitled, as a matter of law and of equity, for equity follows the law, to the old Phillips road, but they would be willing to take a 3 rod strip from the schoolhouse corner west to gate 5, thence turn south past the barn, striking the old road at the top of the hill at the point ‘C,’ and then following it down to their gate, if it were possible to do so without jeopardizing their rights.
“The difficulty lies in the fact that defendants are but purchasers upon a contract and that, as appears from the petition for injunction filed in this case, Stein, the owner, is now attempting to forfeit their rights under the contract and a decree in this case giving us the right to use road 2 would not protect us against future litigation by Stein. * * *
“When plaintiffs consented to use the way north of the buildings as a part of their way, they turned south at the gate and went west of the barn to the point ‘C’ and as stated, they would be willing to accept this, if the owner of the land as well as the defendants would consent thereto.”
We think the plaintiffs are entitled to one of these alternatives. If, within ten days after a copy of this opinion is served upon defendants, the owner of the land, as well as the defendants, will consent to a decree for a 3 rod strip from the schoolhouse corner west to gate 5, thence turn south past the barn, striking the old road at point C, and thence to the gate of the plaintiff, then such a decree may be entered. In the absence of such consent, a decree may be entered establishing the right of way upon the line as originally located.
The decree is reversed and one may be entered here in accordance with this opinion, and appellants will recover costs of both courts.
McDonald, C. J., and Clark, Bird, Sharpe, Steere, Fellows, and Wiest, JJ., concurred. | [
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McDonald, C. J.
The defendant was convicted of a violation of the prohibitory liquor law in that he kept a place where moonshine whisky and beer were unlawfully manufactured, stored and possessed. He brings Ms case here on exceptions before sentence. All of the evidence was obtained by search warrant. The only question involved is the validity of that warrant. The affidavit was made on December 10, 1924, before the justice who issued the warrant. On the following day officers searched the dwelling house and farm buildings. They found a still in operation and a large quantity of supplies and a complete equipment for the manufacture of moonshine whisky in one of the outer buildings. In the house they found a quantity of whisky and beer. The defendant says that the affidavit failed to state, “the exceptional conditions specified in the statute which authorize the search of a private dwelling or residence occupied as such;” that it did not “specifically state that the dwelling house itself is used as a place of public resort or that intoxicating liquors are manufactured and sold in the dwelling itself” and that it does not state “facts and circumstances sufficient to make it appear that there was probable cause for issuing the warrant.” We think a recital of the material parts of the affidavit Will show that the defendant’s objections are without merit. After reciting that intoxicating liquors are manufactured, possessed, sold, furnished or given away on certain described premises, the affidavit states:
“That said buildings include a private dwelling house occupied as such, but the place is one of public resort and intoxicating liquors are being manufactured and sold there.
“That he, the said affiant, believes and has good reason to believe that the aforesaid named intoxicating liquors, together with vessels, containers, implements, furniture used in the illegal manufacture, possession, sale and furnishing and storage of said intoxicating liquors are now concealed in the building on the premises afore described, contrary to law.
“That the facts supporting the belief of the affiant and upon which the foregoing allegations are made are as follows: he is well acquainted with the odors of intoxicating liquors and whisky mash, being moonshine whisky in process of manufacture; that he was on said premises the evening of December 9,1924, and at and near its various buildings, he distinctly noticed the odors of moonshine whisky and whisky mash and knows that the same was being manufactured, possessed there. A large number of automobiles came there in the early evening containing a large number of people and they were drinking liquor on the premises; this is the third time I have been on the premises at night during the last six weeks and each time I noticed the odor of intoxicating liquors and the congregating of a large number of people.”
This affidavit contains sufficient facts to warrant the finding of probable cause for believing that the defendant’s dwelling was used as a place of public resort and for the unlawful manufacture and sale of intoxicating liquors. On this question the case is controlled by People v. Schregardus, 226 Mich. 279. See, also, People v. Hertz, 223 Mich. 170.
Further objection is made to the sufficiency of the affidavit because the different acts mentioned in the statute as constituting the offense are alleged in the disjunctive. The same nicety of pleading is not required in an affidavit of this kind as in an indictment. The affidavit is sufficient if it substantially alleges the offense in relation to the premises to be ■searched. Section 27, Act No. 338, Pub. Acts 1917 (Comp. Laws Supp. 1922, § 7079 [27]).
There are no other questions requiring discussion. We find no reversible error in the record.
The judgment of conviction is affirmed. The case is remanded for sentence.
Clark, Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Moore, ,J.
The plaintiff brought this case to re cover damages for personal injuries received by him when the defendant ran into him with an automobile owned and driven by the defendant. After the testimony offered by the plaintiff was all in, and without witnesses being sworn on the part of defendant, the court directed a verdict in behalf of defendant for the reason the judge was of the opinion that the testimony of the plaintiff showed he was guilty of contributory negligence. The case is brought to this court by writ of error.
It is insisted by counsel for the appellant that whether plaintiff was guilty of contributory negligence or not, it presented a question of fact which should have been presented to the jury.
Counsel for defendant cites Barger v. Bissell, 188 Mich. 373; Tolmie v. Taxicab Co., 178 Mich. 433; Deal v. Snyder, 203 Mich. 275; Creitz v. Wolverine Engineering Co., 213 Mich. 402, and other authorities.
The facts are not very much in dispute. The plaintiff was a painter who roomed at Dimondale, and was doing some painting at East Lansing. He went to and from his work on an automobile bus that ran between Eaton Rapids via Dimondale and Lansing. Dimondale is a village having about 400 inhabitants. Main street runs nearly north and south and is 55 feet wide between sidewalks. It is crossed at right angles by Water street. When the omnibus reached Main street it turned north, stopping on the right-hand side of Main street about 17 to 20 feet north of the north line of Water street. The plaintiff that morning had two half-gallon and one one-quart cans of paint which he carried in his arms. Soon after the omnibus stopped the plaintiff stepped out into the street, but before doing so he says he looked both ways and, seeing nothing, proceeded east on or near the crosswalk until he got about two-thirds of the way across the street, when he turned to the north and went diagonally toward the omnibus; that when he passed the rear of the omnibus and had gone about three feet he was overtaken by the automobile and was thrown down and was severely injured. It was his claim that no signal was given of the approach of the automobile until it was within six or eight feet of him and that he was almost instantly struck.
Other witnesses told substantially the same story except the driver of the omnibus, who said that plaintiff started from the first to go in a diagonal direction toward the omnibus. On his cross-examination the plaintiff testified there was a bridge across Main street about 30 rods south of where the omnibus was and that he could see the street all the way to the bridge had he looked. Other witnesses place the bridge only 15 or 20 rods away and all are agreed that if one had looked in that direction he would have seen the defendant’s automobile from the time it came over the bridge until plaintiff was hit by it. The driver of the auto-bus was a witness for the plaintiff and testified he saw the automobile from the time it came over the bridge until it hit plaintiff; that it was on the right-hand side of the center of the street and did not run to exceed 10 miles an hour, and that it was an upgrade. The testimony is that there was nothing to interfere with the view of the street by both plaintiff and defendant had they looked. Plaintiff testified that he did not look after he started to go across the street, but traveled the 40 feet or more that he did travel without again looking.
As no witnesses were sworn by defendant, we have not got his version of what happened, though one of the witnesses testified that defendant stated soon after the accident that he did not see the plaintiff until it was too late to avoid him.
We think the case is within the principle stated in Barger v. Bissell, 188 Mich, at page 373; Hill v. Lap pley, 199 Mich. 369; Fulton v. Mohr, 200 Mich. 538; Deal v. Snyder, 203 Mich. 275.
Counsel for appellant insist that, as there was more than 30 feet of roadway west of plaintiff in which defendant might have driven and thus avoided hitting the plaintiff, the doctrine of last chance applies, and that upon that feature of the case it should have been submitted to the jury. There is nothing in the record to indicate that the driver of the car did not suppose plaintiff would stop for a moment, or if he did not do so that he would quicken his pace. Had he done either of these things the accident would not have happened. We find no reversible error.
Judgment is affirmed, with costs to the appellee.
Sharpe, Steere, Fellows, and Wiest, JJ., concurred with Moore, J. | [
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McDonald, C. J.
This is a certiorari proceeding to review an order of the circuit court denying a motion to dismiss as to the defendant the county of Kent. On November 4, 1923, two young ladies, Thelma Smith and Winifred McCaul, were instantly killed by drowning, and it is claimed that their death was caused by the negligence of the defendants. At the time of the accident they were riding in an automobile with two young men, going in a southerly direction toward the village of Lowell in Kent county, Michigan, over a trunk line highway known as M-66. At the place of the accident the highway crosses a creek at which point the Consumers Power Company has a mill race over which it has constructed and maintains a bridge. As the highway approaches the bridge in the direction from which the young people were coming it turns sharply to the left and then ascends and winds towards the northeast, making, as the declaration alleges, a highway always dangerous for public travel. On the night of the accident it had been raining. The highway is constructed of gravel and there were ruts six or seven inches deep in the approach to the bridge. The automobile followed the road track and ran into these ruts. When the rear wheels were released they skidded and swung against the railing of the bridge which gave way and the car and its occupants went into the mill race. Both young women were drowned. Separate actions were begun for damages, but were consolidated for the purpose of this proceeding. It is the plaintiffs’ contention that there was a joint liability on the part of the defendants; that the negligence of each in failing to keep the road and bridge in reasonable repair contributed to the injury which caused the death of the decedents. The defendant county of Kent pleaded the general issue with notice of several special defenses which were made the basis of a motion to dismiss the causes as to the county. This motion was denied and the matter is here for review on writ of certiorari.
The questions involved are stated by counsel for defendant in their brief as follows:
_ “(1) Can the county of Kent, a municipal corporation, be held liable to the plaintiff for damages sustained and to be sustained by the father and mother of the deceased, because of the instantaneous death of their minor daughter by reason of a defective bridge or highway?
“(2) Can the county of Kent be held liable because of defects in the bridge, it appearing that the bridge is 94 feet in length on a State trunk line road?”
In discussing the first proposition counsel for the county insists that the statutes relating to the liability of municipalities for defective highways and streets do not authorize a recovery of damages for injuries which result in instantaneous death; that the law makes a municipality liable only to persons who have sustained “bodily injury;” that there can be no recovery in the two suits under consideration because they are not brought by or in behalf of any person who sustained “bodily injury,” but are brought by the parents under a general law commonly called the “death act,” to recover the pecuniary injury sustained by them. In other words, the defendant contends that if because of a defective highway or street a person is injured, but not fatally, he may recover damages for his injuries. If injured fatally but does not die instantly, his administrator may recover damages un less he releases before his death. If he receives bodily injuries from which he dies instantaneously, the law permits of no recovery.
The death act under which this action is brought is a general statute and applies only to cases where death from negligent injuries is instantaneous. It reads as follows:
“Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action, and recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.” 3 Comp. Laws 1915, § 14577.
Section 1 of the statutes relating to the liability of townships, villages, cities and corporations for injuries resulting from a failure to keep streets and highways in reasonable repair, being section 4584, 1 Comp. Laws 1915, provides that they shall be liable in just damages to, “any person or persons sustaining bodily injury upon any of the public highways or streets in this State.”
There is no express provision in this statute giving damages to any other person than one sustaining bodily injuries. Section 5 provides that there shall be no liability, “except under and according.to the provisions of this act.” From this counsel for the defendant argue that section 5 prohibits any recovery except under section 1, and that, therefore, the death act which is a' general statute does not come within the terms of the highway damage law. The question to be determined is, Does section 5 prohibit a recovery under the death act for instantaneous death resulting from injuries received on a defective highway? As it is important to consider the purpose of the enactment of section 5, we quote it in full as follows:
“No township, village or city in this State shall be liable in damages, or otherwise, to any person or persons for bodily-injury, or for injury to any property sustained upon any of the public highways, streets, bridges, sidewalks, crosswalks, or culverts, in such townships, villages or cities, except under and according to the provisions of this act, and the common-law liability of townships, villages and cities of this State, for or on account of bodily injuries sustained by any person by reason of neglect to keep in repair public highways, streets, bridges, sidewalks, crosswalks, or culverts, is hereby abrogated.” 1 Comp. Laws 1915, § 4588.
The purpose of the enactment of this section of the statute and its alleged prohibitory effect upon the applicability of the death act to the highway damage law were considered by this court in Racho v. City of Detroit, 90 Mich. 92. It was there said:
“Does section 5 of the act of 1887 nullify this general law in respect to injuries received upon public streets and highways by reason of the neglect to keep them in repair? _ We think not. It does not expressly take such injuries out from the operation of the general law, but provides that no municipality shall be liable to any person for bodily injuries, except under and according to the provisions of the act, and in the same breath abolishes' all common-law liability. • It was evidently intended by the legislature that no living person, should recover for his bodily injuries, except under or by virtue of the act; but there is no express or implied declaration that, in case such person shall die of such injuries, the right of action shall die with him, or that his personal representatives cannot recover under the general law, as in other cases of negligent injury. This section 5 was aimed at the previous holding of the Federal courts that a common-law liability for such injuries did exist in this State, which holding, before the enactment of this statute, permitted a nonresident of the State to recover for injuries received on account of defective streets, bridges, crosswalks and sidewalks in the Federal courts, when at the same time there was no remedy in our courts for an inhabitant of this State receiving such injuries. The prohibition of section 5 is directed against persons suing for their own personal injuries, and not against the representatives of a deceased person, suing, under the authority of the general law, for injuries to such deceased persons, who, if living, could have maintained his action under the statute of 1887, notwithstanding the prohibition of section 5 of said statute.”
Though Racho lived for nearly a year after his injury, the court held that a recovery could be had under the death act. In view of the present holdings of this court, the action could only have been brought under the survival act. Beginning with Dolson v. Railway Co., 128 Mich. 444, it has been consistently held that actions will lie under the death act only where death is instantaneous. In respect, however, to the applicability of the death act to the highway damage statute, the decision in the Racho Case has never been disturbed. It is in harmony with our present views and is controlling of the issue here involved.
Further, in defense to the action the defendant contends that it is not liable for the defective condition of the bridge because the statute requires such bridges to be repaired and maintained by the State highway department.
The statute in question (Act No. 183, Pub. Acts 1917, § 4 [Comp. Laws Supp. 1922, § 4854]) reads as follows:
“The State highway department shall design all bridges and culverts and construct, repair and maintain all bridges greater than thirty feet clear span on State trunk line highways.”
The county of Kent, having adopted the county road system, is not relieved by this section of the statute of its jurisdiction over county roads, bridges and culverts, and of its statutory duty to maintain them. See Longstreet v. County of Mecosta, 228 Mich. 542. The circuit judge correctly disposed of the questions involved.
The writ is dismissed, with costs to the plaintiffs.
Clark, Bird, Share, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Fellows, J.
If we were the triers of the facts, we might be persuaded by the marshaling of the facts and circumstances which we find in the brief of defendants’ counsel. But we may set aside the award only in the event there is no testimony to support it. The facts most favorable to plaintiffs together with the legitimate inferences must be accepted by us. Having this rule in mind, we will state the case. Plaintiff Margaret L. Holden was married to Sidney L. Holden in Montreal on December 19, 1918. Plaintiff Queenie Holden is their daughter, aged about five years at the time of the hearing. Some time after their marriage they purchased a home in Montreal on contract. Mr. Holden was then working for the Grand Trunk railroad at $90 a month. They fell behind in their payments on their home and in April, 1923, they came to Detroit. The record does not show that they brought their furniture and the inference is quite strong that they came with a view of earning more money so they could pay for their home in Montreal or one here. They both secured employment and lived at the home of Mrs. Holden’s brother. Some of Mrs. Holden’s earnings were used to pay on the home in Montreal. The record does not disclose any quarrels between the Holdens but it does disclose that Mr. Holden possessed considerable temper and made himself objectionable to the wife of plaintiff’s brother who was of a nervous temperament. This continued until Mrs. Holden’s brother requested her to ask her husband to leave; this she did, and he secured a room at the home of one Johnson across the street. It was not large enough to accommodate Mr. Holden and his wife and child, and besides the little one had to be cared for while she was at work. She and the little girl remained at her brother’s. This incident occurred in August. When Mr. Holden left he gave his wife $50 and thereafter made contributions to both plaintiffs’ support. True they were small but there is testimony that he was not regularly em ployed and his health was not the best. On direct-examination plaintiff testifies that she saw her husband frequently but this was modified on cross-examination. The record contains a most affectionate note from him to his wife and a few days before his death he wrote his mother that he had gone back to work for dé-fendant lumber company and intended to work overtime in order to get a home for his wife and child. He did work overtime.
On July 9, 1924, Mr. Holden received an accidental injury while in the employ of defendant lumber company from which he died the following day. Mrs. Holden was notified of the accident and promptly went to her husband. It is conceded that the accident arose out of and in the course of decedent's employment. The defense is that the parties were living apart, were not living together within the meaning of the compensation act. Numerous cases are cited. They have been examined together with a number of others, but in the final analysis the case falls either within the holding in Finn v. Railway, 190 Mich. 112 (L. R. A. 1916C, 1142), as contended by defendants, or the holding in King v. Cement Co., 216 Mich. 335, as contended by plaintiffs. We are persuaded that the King Case controls. In the Finn Case there had been differences between the parties growing out of religious views and other matters; they had drifted apart in their views and the wife had gone to another State and resumed her former vocation of teacher. The opinion clearly shows not only what kind of a case was before the court but also what was not before the court. Mr. Justice Steere, speaking for the court, there said:
“Her evidence as to the nature and occasion of leaving her husband and living apart discloses something more than a mere suspension of the family relations, for an understood period of time, incidental to journeys for business or pleasure, changing the family place of residence, delays in preparing a new home, financial embarrassment, sickness, or like common causes which often result in the members of a family temporarily living apart without estrangement.”
From the statement of the facts in the instant case, it will be noted that many controlling features were absent in the Finn Case which are present in the one now before us. The commissioners upon this record were justified in concluding that there had been no estrangement between the parties, either temporary or permanent. The trouble was between decedent and plaintiffs relatives. She was at work and some one had to care for the child while she was absent. Naturally her immediate relatives were proper ones to bestow such care. Until decedent learned to control his temper, they would not have him in their home. Defendants’ counsel make much of plaintiffs statement that she thought her husband needed a lesson but the attitude of her relatives precluded him from living at their home unless he mended his ways and learned to curb the temper he displayed toward them. In letters to his mother he said he did not blame his wife for the situation. The proof discloses the financial embarrassment of decedent, that he was not in good health; they were in a strange city, away from the home they had partially paid for, and at the time of the accident he was working overtime to get a home for his wife and child. Upon the whole record the commissioners were justified in concluding that the separation was but a temporary one under such circumstances and did not deprive the plaintiffs of the conclusive presumption of the statute. Plaintiffs’ case is stronger than was plaintiff’s case in the King Case, and it bears much more of merit.
The award will be affirmed.
McDonald, C. J., and Claek, Bied, Shaepe, Mooee, Steeee, and Wiest, JJ., concurred. | [
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McDonald, C. J.
The defendant pleaded guilty in the superior court of Grand Rapids to an information charging him with the unlawful possession of intoxicating liquor, and with selling and furnishing one pint of moonshine whisky in violation of the pro hibition law. It was not charged in the information as a second or subsequent offense, but it was treated as such by the trial court, and the defendant was sentenced to imprisonment at Jackson State prison for a maximum term of two years and a minimum term of one year, with a recommendation of one year. The reason for the' sentence is explained by the trial court in a certificate which he has attached to the record as follows:
“In order that the Supreme Court may understand the. reason for the sentence imposed, the trial court hereby certifies the following amendment to the said bill of exceptions.
“When the respondent was examined by the court, after his plea of guilty, he admitted that he was the same person as Charles Anson who was previously sentenced by this court on the 29th day of June, 1922, upon his plea of guilty to a violation of Act No. 338 of the Public Acts of Michigan for the year 1917, as amended, commonly known as the liquor law. The court, therefore, treated the pending case as a second violation and imposed sentence as and for a second violation.”
The trial judge was in error. He sentenced the defendant for an offense of which he had not been convicted. The statute provides an increased punishment for a second or subsequent offense, but it must be charged as such in the information. That was not done in this case. As the sentence imposed was greater than that prescribed for the offense charged, to which the defendant entered a plea of guilty, it is excessive and illegal. The case will be remanded for proper sentence as for a first offense. And in imposing sentence the trial court will take into consideration the fact that the defendant has served six months in prison under the unauthorized sentence.
Clark, Bird, Sharpe, Moore, Steere, Fellows,. and Wiest, JJ., concurred. | [
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Clark, J.
Plaintiff paid under protest tax of 1923 to defendant city and sued to recover back. He prevailed in a trial without a jury. Defendant brings error.
Plaintiff was a resident of defendant city. To carry on his business of fishing he had a fish house and equipment located on the shore of Grand Traverse bay in Elmwood township, Leelanau county. A part of the equipment was a gas boat, a registered craft.
“He is the owner of the building in said township of Elmwood where he carried on his said business of fishing. At and in said building he makes his fish boxes, takes in his fish, sorts and packs them ready for shipment, keeps his cards, stamps and shop accounts there. After packing the fish are taken to Traverse City for shipment. Until the year 1924, he had a dock in connection with this building, and except in bad weather he unloaded and loaded direct to and from said dock.”
Such property was assessed for taxes in said township in 1923 and prior years. Before 1923, plaintiff kept the boat when not in use at or in the vicinity of the fish house. Early in January, 1923, he moored the boat temporarily in Boardman river within the city, where it remained until about the middle of April, 1923, when the fishing season began.
The charter time for taking assessment in the city for all taxes is the first Monday in February, the time for completing the tax roll is the first'Monday in March. The boat was assessed to ^plaintiff, as he knew, by defendant’s assessing officer. We quote sections 4007 and 4008, in part, 1 Comp. Laws 1915:
“Section-13. All personal property, except as hereinafter provided, shall be assessed to the owner in the township in which he is an inhabitant, on the second Monday of April, of the year for which the assessment is made.
“Sec. 14. The excepted cases referred to in the preceding section are as follows, viz.:
“First, All goods and chattels situate in some township other than where the owner resides shall be assessed in the township where situate, and not elsewhere, if the owner or person having control thereof hires or occupies a store, mill, dockyard, piling ground, place for sale of property, shop, office, mine, farm, place of storage, manufactory or warehouse therein, for use in connection with such' goods and chattels.” * * *
Under the statute and the facts the trial judge rightly held the boat assessable in Elmwood township. But it is urged that the legal obligation rested upon plaintiff to appear before the board of review of defendant city and to exhaust this remedy as a condition precedent to paying the taxes under protest and suing to recover back; citing cases. The rule does not apply where the municipality has no jurisdiction to assess. It was said in Ryerson v. City of Muskegon, 57 Mich. 383:
“The only question is whether the logs at the camps in the other counties were assessable in Muskegon. For if not, we think there was a want of jurisdiction, which would make the assessments as to them void, as beyond the right of the city officials to deal with at all.”
See, also, Putman v. Fife Lake Township, 45 Mich. 125; McCoy v. Anderson, 47 Mich. 502; Williams v. City of Saginaw, 51 Mich. 120; Township of Kalkaska v. Fletcher, 81 Mich. 446.
Judgment affirmed.
McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Moore, J.
By stipulation of counsel the above cases were tried as one, but separate verdicts and judgments were entered therein. Grace Mancuso recovered a judgment for $1,500 against the Yellow Taxicab Company, and James Mancuso recovered a judgment of $500 against the Yellow Taxicab Company. The cases are brought into this court by writs of error.
The cases are simplified by a stipulation filed in this court by counsel for the Yellow Taxicab Company that they abandon all assignments of error arising out of the refusal of the trial court to adjourn the trial to enable them to obtain a certified copy of a petition filed in a suit commenced in Cleveland by Mrs. Mancuso against the Cleveland Transfer Company. Counsel also concede that the petition offered in evidence from the Cleveland court was not certified as a true and correct copy, but was an uncertified petition and duplicate only, as testified to by William Brooks.
The record discloses that on September 14, 1921, about 6:00 a. m. James Mancuso and Grace Mancuso, husband and wife, residents of Cleveland, boarded a taxicab as passengers for hire of the Yellow Taxicab Company in front of the Hotel Tuller in Detroit, to go to the Michigan Central depot to take a train for their home in Cleveland. At the intersection of Bagley avenue and Second boulevard the Yellow taxicab going west collided with an Overland car driven by defendant Palgut, going in a southerly direction on Second boulevard.
Mr. Palgut was called as an adverse witness. He testified in part:
“I was the owner of the Overland touring car that was in this accident on Second and Bagley. I was driving in a southerly direction on Second avenue, on the day of the accident. I was driving about 20 miles between blocks and I cut down to about 8 when I came there — I looked to the left and right, saw that my way was clear and proceeded on. No more than I got under way, the Yellow taxicab dashed upon me and before I had a chance to do anything— I tried to turn to the right and at the same time with the terrific speed he was going, I could not help but come in contact with him. I can judge approximately the speed at which automobiles travel by watching them. The Yellow taxicab was traveling across the intersection about 30 miles an hour. The taxicab did not slow at all when it crossed Second avenue. There is an electric light pole right at the corner of Second; he just missed that by about three feet. My car was facing west. The taxicab turned me right around facing west, in the same direction the taxicab was going. As I got to the corner of Bagley and Second, the Yellow taxicab was not in sight. I presume there were other cars on that side of the street that obstructed my view. The taxi did not attempt to turn either direction. It did not slow down to cross Second avenue.”
A witness testified in part as follows:
“My name is James Maguire. I live at 624 Bagley avenue between Second and Third, closer to Second than to Third. I work at the Michigan Central depot. On the 14th day of September, 1921, I was living at 624 Bagley. I recall an accident that happened on the 14th day of September, 1921, in which the Mancusos were injured. I got up and was going to work and started to shave and heard a crash, about 6 and 7, Detroit time. I was in the house; I should judge my place is a distance of 200 feet from Second. I was in the back part of the house. I ran out sof the house and I seen a cab turned over on its side, west of Second, nearer my house than what Second is. I rushed over there and I found this couple in the cab. The cab was on its side, tipped over between the curb and sidewalk. When I got there, Mr. and Mrs. Mancuso were in the cab, and I helped to pull them out. I took Mrs. Mancuso into my house, laid her out on the davenport there in the sitting room and my wife tried to restore her to consciousness until the patrol wagon came and took her away, which was maybe about half an hour. She was unconscious when she was brought into my house. The taxicab was approximately — at least 75 feet from the corner when I saw it tipped over, — when it came to a stop, west of the corner. I did not see another automobile there. I did not pay much attention to it because my attention was drawn to aid this. lady. Her clothes were mussed up, quite a bit I recall; I believe one of her stockings was ripped open quite a bit; her dress was torn some I think. I never met Mr. Mancuso and Mrs. Mancuso before in my life. The taxicab was headed west on Bagley when I saw it.”
The plaintiffs were both sworn and testified that when the Yellow taxicab approached Second boulevard, and when the accident happened, it was running 30 to 40 miles an hour. They testified in detail as to the occurrence and the injuries. They were subjected to a long and able cross-examination. The taxicab driver was not called. It was made to appear that he could not be found. A recordograph was attached to the taxicab and it was claimed it showed the speed of the taxicab was but 14 miles an hour when the accident happened.
A witness was sworn on the part of the defendant who testified in part as follows:
“I am Mrs. Jessie Stiles; I am at 1732 Fort street. I did live at 625 Bagley, on the south side of Bagley avenue, near the intersection of Bagley and Second; there is just a vacant lot between my place and Second avenue, one large lot. I was at home the morning of the accident in this case. I saw the accident. I saw the taxicab that proceeded along west on Bagley. I was sitting in the window; my attention was attracted to the taxicab first because I heard it blow its horn a little ways this side of First street.
“Q. And how near was the taxicab to Second street —the taxicab was going west on Bagley; how near was it to Second street when you first saw it?
“A. I saw it coming quite a way down Bagley avenue from First street.
“Q. That is one block is it?
“A. Yes, sir.
“Q. You say that you noticed or you was attracted by the blowing of the horn as he proceeded along west on Bagley toward Second street, what did you see in reference to his operation of the car?
“A. Well, I seen he stopped or came to pretty near a stop when he got to the corner of Second street and then he started up and got pretty near across the street when this other car came and hit him.
“Q. The taxi you say was nearly across the street?
“A. Yes, it was.
“Q. And where did the other car hit the taxicab?
“A. In the side.
“Q. What happened to the taxicab after the other car hit it in the side?
“A. Turned over.
“Q. And where did the other car or the taxicab go then?
“A. It did not go any place; it just turned over.
“Q. Where was it when it turned over?
“A. On the corner.
“Q. On the corner how near to your house?
“A. Not very far.
“Q. On the same side of the street?
“A. On the same side of the street.
“Q. Now did you see the other car before it hit the taxicab?
“A. No, sir, I did not.
“Q. When did you first see the other car?
“A. When it hit that car — when it hit the taxi. I have ridden in automobiles but not qualified to judge of speed of automobiles.
“Q. When he arrived at the corner — when the taxicab was driven up to the corner of Bagley and Second you said, that he slowed up or stopped his car; will you describe what you saw — did he stop the car entirely?
“A. No, he did not; he slowed up.
“Q. Now could you tell how fast — did you have sufficient view of the other car to tell how fast that car was going?
“A. No, I did not; no, sir.
“Q. Seated at your window did you have a view of Second avenue?
“A. No, sir.
“Q. That is north from the intersection?
“A. No, sir.
“Q. What obstructed your view there — what obstructed your view from looking up Second avenue?
“A. I could not see up Second avenue.
“Q. How far across the street at the corner of Bag-ley and Second was the taxicab when it was hit by the Overland?
“A. It was away across the corner.”
It is claimed the court erred in his charge in relation to the ordinances of the city. Early in his charge the court said to the jury:
“I charge you that a violation of a section of the Michigan motor vehicle law, so-called, is negligence per se; that is negligence of itself; whereas the violation of a section of a city ordinance is merely evidence of negligence.”
What he said later must be considered in connection with this statement.
The contention of counsel is stated in the brief as follows:
“It is the contention of defendant that the amendment of the statute abrogated the provisions of the ordinance as to speed limit in that townships, cities or villages under the State law can not change the speed limit provided by the motor vehicle act, except in park and parkways.
“While municipalities have the power to pass ordinances governing the use of the highways, such provisions of the ordinances which in any way contravene the general statute affecting automobiles must be held invalid and void. People v. McGraw, 184 Mich. 234.
“If there are inconsistencies between an ordinance or a statute, to the extent of such inconsistencies the ordinance must give way and that is true when the act of the legislature follows as well as when it precedes the ordinance. Ex parte Smith, 26 Cal. App. 116.”
The City Ordinance No. 737, section 16 of part 2, provides:
“Motor vehicles shall be driven at a rate of speed not to exceed ten miles per hour in the business portions of the city; and outside of the business portions of said city at a rate of speed not to exceed fifteen miles per hour.”
Section 8 of part 2 of the same ordinance provides . as follows:
“Reckless driving within the meaning of this ordinance shall be deemed to include the following offense which are hereby prohibited. * * *
“Subdivision (e). Driving at more than one-half the legal rate of speed when entering an intersecting street.”
Section 21 of Act No. 368, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 4817), reads:
“Upon approaching an intersecting highway * * * and also in traversing such intersecting highways * * * a person operating a motor vehicle shall have it under control and operate it at such speed as is reasonable, and proper, having regard to the traffic on such highway and the safety of the public.”
The legislature, in fixing a maximum speed, recognized by the use of the foregoing words that a speed less than 20 miles per hour at street intersections may be unlawful. We do not think there is any conflict between the statute and the ordinance.
This court held in a recent case:
“While a speed in excess of the legal limit prescribed in the State law is in itself prima facie evidence of negligence, a lower speed may, according to the circumstances, be excessive and evidence of negligence. The rate of speed must always be reasonable and proper, having due regard to existing conditions at the time and place, the lives and safety of the public being the test.” Patterson v. Wagner, 204 Mich. 593.
Complaint is made because the court excluded the testimony of Mrs. Stiles taken in the recorder’s court. Counsel for defendant Palgut had cross-examined the witness as follows:
“Q. Didn’t you tell Judge Faust that you did not see this accident?
“A. I did not.
“Q. You are sure about that?
“A. Yes, sir.
“Q. Before Judge Faust. Judge Faust heard this case over there; and isn’t it a fact that you testified before Judge Faust that you did not see this accident?
“A. I did not; no, sir.”
It is conceded the testimony taken before Judge Faust ordinarily would not have been admissible, but it is insisted the door ha'd been opened by the cross-examination and the testimony should have been permitted. The testimony offered did not contradict that given on the cross-examination, and as against the objection of counsel for the plaintiffs we do not think the court erred in excluding the testimony.
It developed in the course of the trial that Mrs. Mancuso suffered an accident in a taxicab in Cleveland several months after the one in Detroit, and that suit was brought for her in Cleveland. Counsel sought to show how much she received in settlement of that suit.
The court expressed himself as follows:
“The Court: I permitted a very extensive inquiry into all her accidents, but I do not know what bearing it has on it what sum she received; I do not see how that becomes material. I permitted the inquiry at some length as to all her injuries and accidents and all that, but the amount she received I do not think is material. I think it would be getting into rather dangerous territory when you get talking about what she received for this accident or that accident. I have no objection to your finding out what the extent of her injuries were, and I permitted that, but I do not think it is material as to what amount she received for either the first accident or the second accident.”
Counsel were given the widest latitude in inquiring about the accident in Cleveland, and we do not think the court erred in excluding the testimony.
The other errors assigned have been considered, but do not call for discussion.
The charge of the court to the jury covers more than 14 pages of the printed record. The testimony was conflicting. The important questions were questions of fact. They were fairly submitted to the jury. We discover no reversible error.
The judgments are affirmed, with costs to the ap-pellees.
McDonald, C. J., and Bird, Sharpe, Steere, Fellows, and Wiest, JJ., concurred. Clark, J., did not sit. | [
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Moore, J.
Plaintiff made a contract with defendant whereby plaintiff was made its agent to place its advertising matter for one year ■ and longer unless otherwise revoked. After plaintiff did the preliminary work the defendant canceled the contract. Nothing was paid to the publishers. As defendant had canceled its agreement it was unwilling to pay the demand,- and this suit was brought by plaintiff to recover for services rendered. The declaration contained two counts, one on the contract and another upon the common counts. The court submitted the case to the jury upon the quantum meruit, and reserved the right to set the verdict aside. The jury rendered a verdict for plaintiff of $1,720.59. Plaintiff filed a motion to have the judgment increased. The defendant filed a motion to have the judgment set aside. The court, after hearing these motions, rendered a judgment for defendant non obstante vere-dicto. Plaintiff assigns error.
• Plaintiff made a contract to perform services. While the facts are somewhat different we think the rule of law should apply that is applicable to the employment of servants. Ware Bros. Co. v. Carriage Co., 192 N. Y. 439 (85 N. E. 666, 22 L. R. A. [N. S.] 272, 127 Am. St. Rep. 914). Plaintiff rendered most of the services it contracted to perform before the con tract was canceled. Nothing, however, was paid to the publisher. It sued the defendant and declared specially on the contract, also upon the common counts. This was proper as it was entitled to recover for its services it had rendered, either at the contract price or for what its services were reasonably worth. Mitchell v. Scott, 41 Mich. 108; Midland Operating Co. v. Miller, 197 Mich. 567. In the course of the opinion in the latter case, it was said:
“The general rule is well settled that a party to a contract, where labor is to be performed, upon the breach of that contract by the other party, has two remedies open to him. He may sue upon the contract and recover damages for its breach, or he may ignore the contract, and sue for services and labor and expenses incurred from which he has derived no benefit. Hemminger v. Assurance Co., 95 Mich. 355; Kearney v. Doyle, 22 Mich. 294; Mitchell v. Scott, 41 Mich. 108; Boyce v. Martin, 46 Mich. 239; Shulters v. Searls, 48 Mich. 550; Bush v. Brooks, 70 Mich. 461; Bromley v. Goff, 75 Mich. 218; Moore v. Nail Co., 76 Mich. 606.”
We are unable to find that plaintiff made an election of counts, consequently the trial court was in no error in submitting the case on the quantum meruit.
The court left it to the jury to say whether there was a custom among advertisers to charge nothing if nothing was published. We think the right to submit this question, under the circumstances of the case, was somewhat doubtful, but we need not determine it as the jury evidently found there was no such custom. Aside from this question, the case appears to have been properly submitted.
As the defendant has assigned no error, a judgment for plaintiff will be entered in the trial court. Plaintiff will recover costs in both courts.
McDonald, C. J., and Clark, Sharpe, Steere, Fellows, and Wiest, JJ., concurred. Bird, J., did not sit. | [
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Sharpe, J.
Defendant reviews his conviction, on a charge óf violating the prohibition law, on exceptions before sentence. The information charged him with having sold one quart of moonshine whisky to one Alfred C. Robertson. Robertson testified that he went to what is spoken of as the Fairbanks house in Traverse City about 9 o’clock in the evening of November 5th last, and purchased a bottle of whisky from the defendant, paying him $2 therefor. The defendant denied that he had sold any liquor to Robertson. Three others in the house at the time testified that they saw no liquor delivered. They all admit that Robertson asked Green for whisky. Two detectives who accompanied Robertson testified that they searched him before he went in and he had no liquor on his person, and that he had the bottle when he came out.
1. It is claimed that the court submitted to the jury the question as to whether Robertson obtained liquor in the house instead of: “Did the respondent, Wallie Green, so sell, give or furnish the said liquor?” It is true that the court said to the jury: “The important question is: Did he obtain that liquor in that house that night?” This was, however, soon after followed with:
“Now, the line of inquiry for you to follow would be substantially this: Did this witness^ Robertson, have any liquor upon his person when he went into the house? Then inquire the answer from the testimony. Did he have his package of liquor when he came out of the house? And then apply all the facts, including the answer to these inquiries and this question: Did this man Green furnish Robertson with that liquor? Just apply your good reason and common sense to it.”
There can be no question but that the jury understood that they must find that defendant furnished the liquor to Robertson before they could convict him.
2. It is urged that the court invaded “the province of the jury in directing them on questions of fact which were in sharp dispute.” In our opinion, the charge taken as a whole is not subject to criticism in this respect. The court did specifically allude to the claims of the parties, but after doing so he said to the jury:
“That is not saying you are to find him guilty unless you are so satisfied. I am not trying to indicate to you what you should find. I am just pointing out to you the line of inquiry along which you may properly proceed, then it is for you to say whether he is guilty or not.”
3. It is said that the court erred—
“By emphasizing in his charge that the respondent by reason of interest might not tell the truth.”
This is based on the part of the charge reading as follows:
“The defendant has testified in this case. He had a right to do that. You will consider his testimony along with all the other testimony in the case, for just what you think it is worth. You have a right to inquire whether his interest in the outcome of this case would cause him to make any misstatements. You will also apply that to the testimony of any other witnesses. Consider whether such witness or witnesses would or did.’ testify wrongfully by reason of interest in this issue or its outcome.”
This but stated the law as it has many times been laid down by this court. People v. Williams, 208 Mich. 586.
The exceptions are overruled. The cause will be remanded and the trial court directed to proceed to sentence.
McDonald, C. J., and Clark, Bird, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Clark, J.
The circuit judge filed an opinion which we adopt in part.
“The bill of complaint was filed in this cause to have a mortgage declared a first mortgage upon certain real estate, issue was joined, and proofs taken in open court.
“From the testimony it appears that the plaintiffs conveyed certain lands to the defendants Gottlieb P. Gerken and Bertha Gerken, and as part payment of the purchase price accepted a mortgage in the sum of $16,312.50. The mortgage was dated March 1, 1921, but was not recorded until March 25, 1921. The delay being caused by an insufficient description of the property.
“On March 1, 1921, Gerken and wife conveyed the property to Warren A. Patton, and the deed was recorded March 11, 1921. The warranty clause in this deed contained the following exception, ‘Excepting a mortgage in the amount of sixteen thousand three hundred twelve and 50-100 dollars, bearing six per cent, interest, due March 1, 1926, with privilege payments with interest thereon after March 1st next, which grantee assumes and agrees to pay by the acceptance of this deed; and taxes and assessments due and payable after January 1, 1921/
“On March 1, 1921, Warren A. Patton and wife executed a mortgage for $6,687.50, in favor of Mr. Gerken. This mortgage was recorded on March 14, 1921. On November 26, 1921, Mr. Gerken assigned this mortgage to the defendant Isaac Weil.
“Plaintiffs claim that their mortgage is a first mortgage on the premises and that the exception in the warranty clause of the deed to Patton was notice thereof to the defendant Weil.
“The defendant Weil claims that as long as the Gerken mortgage was the first one recorded that it is in fact a first mortgage on the premises. * * *
“It must be held that the defendant Weil accepted the assignment of the Gerken mortgage subject to the conditions of the title of the property as shown by the records in the office of the register of deeds, at the time of the assignment.
“It therefore follows that the plaintiffs are entitled to the relief prayed in their bill of complaint, and have their mortgage declared a first mortgage on the premises.”
Defendant Weil has appealed.
The law applicable is stated in the syllabus of Baker v. Mather, 25 Mich. 51.
“Everybody taking a conveyance of, or a lien upon, land, takes it with constructive notice of whatever appears in the conveyances which constitute his chain of title. A second mortgagee takes subject to a prior unrecorded mortgage expressly referred to in the deed to his mortgagor and excepted therefrom.”
See, also, Fitzhugh v. Barnard, 12 Mich. 104; Mason v. Payne, Walk Ch. 459.
Decree affirmed.
McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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McDonald, C. J.
A tri-county drain, known as the Dowagiac river drain, was to be built through the counties of Van Burén, Cass and Berrien. The drain commissioners were Moon of Cass, Ashley of Van Burén and’ Myers of Berrien. A section of the drain in Cass county was let to one Clarence J. McElheny. The contract price was $39,372. On this section orders were issued to McElheny amounting to $132,397.80, more than three times the contract price. Subsequently Moon and McElheny were tried and convicted of conspiracy to defraud. A large number of the orders issued to McElheny were not paid and are involved in this litigation. One order of $4,350 is owned by the Home State Bank of Lawrence. Three orders are owned by First National Bank of Paw Paw for $5,600, $2,700 and $4,200. Three orders by George Turner for $3,095, $2,055 and $3,010. Eight orders by the Lee State Bank for $3,000, $2,000, $4,600, $4,600, $4,000, $4,500, $2,700 and $2,700. Three orders by A. D. Hoppin for $4,000, $1,500 and $1,500, making a total outstanding and unpaid of $60,110. The plaintiff is surety on the bond of Mr. Moon in the penal sum of $2,000; defendants Goss, Porter, Harvey and DeHaven are sureties on the bond of Charles E. Ashley, in the sum of $5,000; defendants Myers and Shultz are sureties on the bond of Harold Myers in the sum of $5,000. The Fidelity & Casualty Company is surety on the bond of Abner M. Moon in the penal sum of $4,000. The other defendants are the holders of orders. When this bill was filed suits at law were pending against the three drain commissioners and their several sureties. On the theory that all of the questions involved could best be tried out in one suit, and that all of the parties must eventually come into a court of chancery for an equitable distribution of their recoveries, the bill was filed. The drain commissioners, their sureties and those holding unpaid orders were made parties. All appeared by counsel and answered issuably. After the taking of testimony some of the defendants for the first time raised the question of jurisdiction and moved to dismiss the bill. The circuit judge retained jurisdiction on the ground that the defendants had appeared and voluntarily joined with the plaintiff in-submitting the question of their rights and liabilities to the court; that no question of fact was involved; that if the parties proceeded to judgment on the law side of the court, it would still be necessary under the statute for them to come into the chancery court to have their recoveries prorated; and that all of the-questions involved could be most conveniently tried out. in one action. The various defenses interposed by the several defendants will be stated as the questions, are discussed in this opinion.
In determining the issues the court decreed that all of the bonds, including that of the plaintiff, were valid and binding obligations; that the drain commissioners Ashley and Myers participated in the wrong committed by Moon, and that they and their sureties were liable for his acts; that the total amount of the several orders was $60,210, and that the total liability on the. bonds was $13,450, which he prorated between the different order holders in proportion to the respective amounts due to them. From the decree entered, Ashley and his sureties, Myers and his sureties, A. D. Iloppin, the Home State Bank of Lawrence, and the plaintiff have appealed.
1. Has the chancery court jurisdiction of the cause? The defendants, who are here questioning the jurisdiction of the court, did not raise the objection until-after proofs had been taken on the merits of the bill. The present practice requires that objections to the jurisdiction shall be interposed in the answer or-presented on motion to dismiss (Act No. 314, chap.. 14, § 4, Pub. Acts 1915 [3 Comp. Laws 1915, § 12456]). Before the enactment of this statute abolish ing demurrers, pleas in abatement and pleas to the jurisdiction, it was held that when the grounds of the objection appeared upon the face of the bill and the defendants had answered issuably and had taken proofs upon the merits, it was too late to raise the question of jurisdiction. Coffey v. McGahey, 181 Mich. 225 (Ann. Cas. 1916C, 923). The rule there announced is applicable here. The objection comes too late.
2. The second question to be considered is the liability of the plaintiff on its bond. The claim is that Mr. Laing, its agent, had no authority to execute the bond. Mr. Laing was an attorney residing in Dowagiac, Cass county, Michigan. He was the agent of the plaintiff with authority, as shown by power of attorney, to execute bonds required of administrators, executors and commissioners for the sale of real property and for receivers and trustees in bankruptcy, but did not have authority to sign such a bond as that in question. Mr. Laing was called as a witness for the plaintiff and testified:
“I recall signing the bond for Abner M. Moon. * * * Mr. Moon came to my office and wanted a bond which he had prepared, amounting to $2,000. He asked me if I represented any surety company and I told him that I did, and I executed the bond then, that is, signed the Maryland Casualty Company’s name by myself, attorney in fact, and delivered it to him. * * * I don’t recall ever collecting any premium on this policy. * * *
“Q. Did you ever report the bond to the Maryland Casualty Company? * * *
“A. Well, so far as I can find in my files, I couldn’t find that I did.”
The bond was approved by the judiciary committee of the board of supervisors and was filed with the treasurer of Cass county. At the outset of the discussion of the question involved, two important facts may be conceded, first, that Laing was the agent of the plaintiff, and second, that he had no actual authority to sign the bond. Mr. Laing was known to be the plaintiff’s agent and, as we shall presently show, had apparent authority to transact the business in question. The following principles of the law of agency are applicable:
“The principal is bound to third persons, acting in ignorance of any limitations, by the apparent authority given, and not by the express authority. * * *
“The question is not, what was the authority actually given? but, what was the plaintiff, in dealing with the agent, justified in believing the authority to be? * * *
“Parties dealing with an agent have a right to presume that his agency is general and not limited. * * *
“And the presumption is that one known to be an agent is dealing within the scope of his authority.” Austrian & Co. v. Springer, 94 Mich. 343, 348-350 (34 Am. St. Rep. 350).
See, also, 2 C. J. pp. 920, 921.
The apparent authority for which the principal may be liable must, however, be traceable to him and cannot be established by the acts and conduct of the agent. The principal is only liable for that appearance of authority caused by himself. It is said that,
“Whenever a principal has placed an agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in assuming that such agent is authorized to perform in behalf of the principal the particular act, and such particular act has been performed, the principal is estopped from denying the agent’s authority to perform it.” 21 R. C. L. p. 856, § 34.
Apparent authority traceable to the plaintiff. Hanging on the wall of Mr. Laing’s office during the time that he represented the plaintiff, was a large display placard on which was painted the following:
“Maryland Casualty Company merits complete confidence. Fidelity and insurance bonds. Maryland Casualty Company, incorporated 1898. * * * Burglary, workmen’s compensation, accident, fidelity and surety bonding.”
Before Mr. Laing could act as plaintiff’s agent it was necessary under a statute of this State to secure a certificate of authority from the insurance commissioner. This was done on application and requisition of the Maryland Casualty Company. The certificate issued recited all of the business that the Maryland Casualty had' authority to transact in the State, and concluded with the following:
“I hereby authorize Sweet Ins. Agency (E. Bruce Laing, only) resident at Dowagiac to act as agent of said company in the writing of insurance as above specified.”
The insurance above specified included “fidelity and surety bonding.” The certificate authorized Mr. Laing to do just what he did in the matter of the Moon bond, and it was issued on the application of his principal. It did not confer upon the agent any additional authority to that which he actually possessed, but it was a holding out to the public by the plaintiff that Laing had authority to issue fidelity and surety bonds without restriction. We need pursue the subject no further. The plaintiff is.bound by the appearance of authority with which' it publicly clothed its agent. The circuit judge correctly determined its liability on the bond of Abner Moon.
8. Liability of the drain commissioners and their sureties. No one questions the liability of commissioner Moon. It is conceded that he issued these orders in violation of his official duty and contrary to the express provision of the statute which makes it unlawful to issue orders in excess of two-thirds of the amount earned prior to the completion and acceptance of the drain. Comp. Laws Supp. 1922, § 4904. In the matter of issuing orders, Moon seems to have been without any terminal facilities. Be- gardless of the amount earned he kept on giving out orders until he was stopped, at which time he had authorized the payment of $100,000 in excess of the contract price. Mr. Ashley also issued orders in violation of the statute. Mr. Myers issued none, so that his liability, if he be liable, rests on a different basis than that of the other two commissioners. For this reason we will first discuss the question of his liability.
In the issuing of orders on the drain fund the statute requires joint action on the part of the commissioners, and it is here claimed that Myers is liable for the unlawful orders issued by Moon and Ashley because of an agreement in which he authorized them to sign his name. This agreement, as stated by witness Goss, is as follows:
“Mr. Ashley said, ‘How would it be if we signed each others’ names to orders when we are not together?’ Mr. Myers said, T don’t know how that would be.’ And Mr. Ashley said, ‘It will be inconvenient for us to get together and sign orders and sometimes the contractor wants money on short notice and it would be very inconvenient to all get together any time the contractor wanted orders.’ And Mr. Myers said, T think that would be all right.’ ”
Claiming to act upon this agreement Moon and Ashley signed Myers’ name to all of the orders on which his name appears. It is conceded by counsel in the record, “that all of the orders signed by Myers himself are paid, and the only orders in controversy were given to Mr. McElheny by Mr. Moon and Mr. Ashley.” Under these facts, conceding the agreement as claimed, is Mr. Myers and his sureties liable for the tort of Moon and Ashley? The whole case against Mr. Myers and his sureties rests on the claim that he authorized his name to be signed to these unlawful orders. There is no suggestion of other official misconduct. There is no evidence that he knew his name was being signed to these orders. At the time the agreement was made no illegal orders had been issued. Mr. Ashley testified that they all knew that orders could not lawfully be used in excess of two-thirds of the amount earned on the contract, and, of course, they all knew that the contract price, $39,372, was the limit. Myers’ agreement was made with reference to these limitations. We have no right to presume that he intended that Moon should use his name in a wholesale criminal raid upon the drain fund. It was not then contemplated that Moon would fraudulently issue orders amounting to $100,000 in excess of the contract price. The agreement with Myers had no reference to such orders. Moon had no more authority to sign Myers’ name to those unlawful orders than he had to sign it to a promissory note. There is no evidence, and can be no presumption that Myers authorized Moon to use his name in any illegal or wrongful act. The most that can be said as to the scope of the agreement between the commissioners is that it gave each of them authority to sign the others’ names to lawful orders. It appears that after the agreement was made, how long after the record doés not show, Moon, in conspiracy with McElheny, fraudulently issued orders representing many thousands of dollars. Some of these orders were signed by Moon alone. On most of them he wrote the names of the other two commissioners. In this rascality Myers had no part, and as far as the record shows had no knowledge that the orders were being issued. Every order issued by him has been paid and every, order to which his name was signed by his authorization has been paid. The record shows no official misconduct on the part of Mr. Myers, resulting in injury to any of the holders of orders. Therefore no liability can be attached to him or to his sureties.
Liability of Ashley and his sureties. So far as liability for the official misconduct of Mr. Moon is concerned, what we have said as to Mr. Myers applies to Commissioner Ashley. He is not responsible for the misconduct of Moon. Every order issued by Moon for which it is here sought to hold Ashley liable, was unauthorized and illegal. It cannot be said that Ashley neglected any official duty in failing to sign these orders, because it was not his duty to sign them. If he had signed them he would have performed an unlawful official act for which he and his sureties would have been liable. As in the case of Mr. Myers the authority which Ashley gave Moon to sign his name was limited to lawful orders. It would seem to be an unwarranted and unjust extension of the agreement which these commissioners had, to say that they ever intended that Moon should use their names in looting the drain fund. If there were any evidence of knowledge on the part of Ashley, that Moon was so using his name, the situation would be different, but there is nothing of that kind in the record. The only orders for which Ashley is liable are the orders which he issued. It is undisputed that he unlawfully issued three orders to C. J. McElheny. One of them is signed by himself alone as drain commissioner of Van Burén county. To the other two he signed the names of Mr. Myers and Mr. Moon. These orders amount to $7,000 and are now owned by A. D. Hoppin. These are the only orders here involved which are signed by Mr. Ashley and are the only orders for which he and his sureties are liable. And as to these there is no liability on the part of the other two commissioners.
But it is contended by counsel for Mr. Ashley that his sureties are not liable because they did not sign the body of the bond, and that in any event their liability is limited to the amount set opposite their names in the justification. The names of the sureties were not signed in the usual place with that of the principal. The names appear, however, signed with their seals at the bottom of the justification certificate. In 4 R. C. L. p. 48, it is said:,
“The signature is usually placed at the bottom of the instrument, but this is not essential. Unless a statute prescribes a place where the obligator shall write his name, it is immaterial where the signature appears on the instrument, so long as the intention to be bound is evident. The question is always one of fact, as to whether the party, not having signed the bond regularly at the foot, meant to be bound by it as it then stood, or whether he left it unsigned be-caused he refused to complete it.”
There is no- evidence as to the intention of the sureties except what may be gathered from the instrument which they signed under seal. It would appear from the face of the bond that they intended to be bound. And if they intended to be bound it was in a joint obligation for the full penalty of the bond. The justification on the bond is as follows:
“State op Michigan,
“County of Van Burén — ss.
“Levi De Haven, $1,5-00; W. H. Goss, $1,000; G. W. Porter, $1,000; H. D. Harvey, $1,500, each for himself being duly sworn deposes and says that he is worth in property liable to execution the sum of.......... dollars over and above all just debts, claims and liabilities.
“Levi De Haven (Seal)
“W. H. Goss (Seal)
“G. W. Porter (Seal)
“H. D. Harvey (Seal)
“Subscribed and sworn to before me this 21st day of December, A. D. 1918.
“Fred W. Reams,
“Notary Public.”
We cannot agree with counsel that their liability is limited to the several amounts set opposite their names. The claim that they thus intended to limit their liability is inconsistent with the recital in the body of the bond wherein it is said that they as sureties are held and firmly bound to the people in the penal sum of $5,000. A fairer interpretation of the use of the figures opposite their names is that these sums represented the individual worth in property of the sureties. This intention to justify to those specified amounts instead of in the sum of $5,000 is apparent from the fact that immediately following these figures in the jurat, the amount that each swears he is worth is left blank. It would have been proper for them to have limited their liability and, if they had so intended, it would have been a simple matter to have so expressed it in the bond. As the bond on its face does not show an intention to limit their liability they must be held to be jointly and severally liable for the full penalty.
Other questions which we do not here deem it necessary to discuss are fully considered in People, for use of Lapeer County Bank, v. O’Connell, 214 Mich. 410.
In our view of the evidence Mr. Myers and the sureties on his bond are relieved from any liability. Mr. Ashley and his sureties are liable for the payment of the three orders held by A. D. Hoppin. The other holders of orders and certificates must be paid pro rata from the amount of the Moon bond. Interest will be allowed from the date when liability accrued.
The decree of the circuit judge will be modified in accordance with this opinion. Defendant A. D. Hoppin will have costs against Charles E. Ashley and his sureties Goss, Porter, Harvey, and DeHaven. Harold Myers and his sureties, Myers and Shultz, will have costs against the Home State Bank of Lawrence, the First National Bank of Paw Paw and the Lee State Bank. The Home State Bank of Lawrence, the First National Bank of Paw Paw, and the Lee State Bank will have costs against Moon and the plaintiff.
Clark, Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Clark, J.
The bill was filed in 1903. No attempt was made to bring the cause to trial until a motion to dismiss had been made by defendants in the cause in September, 1922. William' A. Flanigan was substituted as attorney of record for plaintiff and trial followed, Mr. Henry C. Walters assisting, and attorney Leo S. Schrot having principal charge of the cause. Decree dismissing the bill was entered April 26, 1924. Plaintiff claimed appeal, paid the fee, filed certificate of the stenographer, and got extension of time for settling the case on appeal. The transcript was finished and an attorney, Schrot, informed thereof on or about June 14, 1924. By stipulation time was ■again extended from July 10th to August 15, 1924. Further stipulation of time was refused on or about August 15th, and on that day an attorney for plaintiff obtained without notice to attorney for defendants an order extending time, which order, on motion, was set aside on August 20th.
From August 20th, when an attorney for plaintiff received the transcript, to October 28, 1924, nothing was done toward perfecting an appeal as far as attorney for defendants had notice. On or about October 28, 1924, motion to extend time was made, supported by affidavits showing that Mr. Walters had been retained to work in conjunction with Mr. Flanigan and Mr. Schrot in preparing and presenting a case on an appeal; that Mr. Walters had been in Europe from July 9, 1924, to September 2, 1924; and that following his return had been ill and not able to transact business. There were also affidavits, giving basis for the finding by the circuit judge that attorney Schrot had been notified by the stenographer on or about June 14th that the transcript was ready for delivery, but that the same was not procured until August 20th. The motion was denied on November 1, 1924. A motion was then made by plaintiff to vacate the order denying extension of time. This was supported by affidavits elaborating the matter offered in support of the motion which had been denied. This motion was also denied. In the return to the order to show cause, the circuit judge stated:
* * * “that no good cause for this delay from August 20,1924, to November 1,1924, has been shown; * * * This respondent further shows that after the time in which to perfect an appeal had expired the defendants executed to the Detroit Edison Company certain easements over the property involved in this dispute and that they also settled with the Detroit, Toledo and Ironton Railroad for a right-of-way over the property involved in this litigation. This respondent further shows that after considering all af fidavits and the motion presented at said hearing, he found in his discretion, that the plaintiffs herein had not presented a good cause for the extension of time in which to perfect said appeal and settle said case made.”
The failure of plaintiff to accept delivery of the transcript promptly on or after June 14th, as stated, is also not satisfactorily explained. In Smilansky v. Wayne Circuit Judge, 186 Mich. 463, it was said:
“It has been repeatedly announced by this court that an application for an extension of time in which to perfect an appeal is addressed to the sound discretion of the trial court, and that it must be clear that his discretion has been abused before the determination with reference thereto will be overruled.”
From an examination of the facts and a consideration of the delay as stated, we are unable to find any such abuse of discretion, affirmatively shown, as to warrant this court in overruling that discretion. See Reynick v. Saginaw Circuit Judge, 210 Mich. 563.
Writ denied, with costs to defendant.
McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Wiest, J.
Thomas W. Corby, widower, with no children, on. May 22, 1919, at the age of 74 years, married Madeline Beals, his housekeeper, and four months later Madeline gave birth to a girl baby, named Marie Theresa Corby. October 23, 1922, Thomas and Madeline were divorced, in-a suit brought by Madeline and upon answer and cross-relief asked by Thomas. Decree was granted on Madeline’s bill and she received $50,000. By agreement between counsel in the divorce case the paternity of Marie was not determined by the court. Mr. Corby died, intestate, June 8, 1924. Nephews and nieces of the deceased applied to the probate court to have the Union Trust Company of Detroit appointed administrator of the estate, and the guardian of Marie applied asking for the appointment of the Security Trust Company of Detroit. The probate court appointed the Union Trust Company, an appeal was taken to the circuit, by the guardian of Marie, and in the circuit the order of the probate court was reversed and the Security Trust Company appointed. The order in the circuit did not determine, except prima, facie, the paternity of Marie. We are asked to do no more. The learned circuit judge found that, prima facie, Marie was the daughter of Thomas W. Corby, having been born in wedlock, and, under the statute (3 Comp. Laws 1915, § 13820), granting right of nomination of an administrator to next of kin, her nominee, being suitable, should be appointed. See In re Morgan’s Estate, 209 Mich. 65; In re Berner’s Estate, 217 Mich. 612. By writ of error the nephews and nieces seek reversal of such order. To' prove the birth of Marie, and prima facie establish the paternity of Mr. Corby, a copy of the record of her birth, on file in the office of the State commissioner of health, certified by the State health commissioner, was received in evidence. The certificate attached to the record of the birth of Marie stated:
“I hereby certify that the above is a true and correct copy of the certificate of birth on file in the Michigan department of health.
“R. N. Olin, M. D.,
“State Health Commissioner.
Lansing, Michigan,
June 30, 1924.
(Seal).''
It is admitted that 2 Comp. Laws 1915, § 5621, as amended by Act No. 170, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 5612 [1-3]), makes a copy of a birth certificate, properly certified by the State commissioner of health, admissible in evidence, but it is insisted that to be properly certified requires a statement that the copy has been compared with the original on file and is a transcript of the whole of the original, and 3 Comp. Laws 1915, § 12527, is cited. Authority to certify is found in the statute relating to the recording of birth certificates. The word “properly” does not bring in operation the general statute relative to certified copies of records. Is this copy of the public record properly certified as true and correct? If it is true and correct, then it is the whole thereof and necessarily implies it has been compared with the original on file. While the certificate might be improved by mentioning the name of the person, and state the copy is the whole of the record and has been compared, and not leave such matters to implication, we think it sufficient to admit the copy in evidence. In the divorce case the bill was filed by Mrs. Corby and, in the answer thereto, Mr. Corby asserted he was not the father of Marie. In the case at bar appellants wanted to use such answer as evidence to rebut the prima, facie paternity of Marie, and the court excluded it. At the most this answer was a self-serving statement of Mr. Corby and appellants had no right to employ it as substantive evidence, for it never was evidence and could not be used except in a proper case as an admission against interest made by Mr. Corby. In the circuit the evidence established the marriage between Thomas and Madeline, the birth in such wedlock of Marie, and such facts, prima facie, entitled Marie, by her guardian, to exercise her statutory right and to nominate an administrator. The right vested by statute in next of kin is not divested by infancy or incom petency of the next of kin, but like any other right may be invoked for the infant or incompetent by general guardian. The asserted illegitimacy of Marie does not meet the prima facie evidence of the paternity of Thomas W. Corby. The hearsay testimony of John C. Rabaut should have been excluded, but inasmuch as the hearing was before the court, and such testimony was not needed in reaching the determination, its admission was harmless error. This disposition of the case renders it unnecessary to consider the technicalities asserted by appellee.
The claimed errors urged for reversal have been considered and found without merit, and the order appealed from is affirmed, with costs against appellant.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Steere, and Fellows, JJ., concurred. | [
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Fellows, J.
Defendant took out a license under Act No. 85, Pub. Acts 1923. He erected a tent on a vacant lot in Flint and there sold the articles enumerated in the act. He also sold some confectionery. He did not pay the license fee provided for in Act No. 294, Pub. Acts 1913 (2 Comp. Laws 1915, § 7001 et seq.), which in Flint would amount to $20 a day for the first five days and $10 a day thereafter. He was convicted of a violation of the last named act and reviews his conviction on exceptions before sentence. We need not determine whether the provisions of section 6 of the act of 1923 exempts payment of a license fee under the act of 1913 for the sale of articles covered by the act of 1923, because the sale of candy was not authorized by the license issued under the act of 1923, and it, therefore, becomes necessary to determine defendant’s contention that the act of 1913 imposes an unreasonable, unjustified and excessive fee upon the business conducted by him and for that reason the act is invalid.
The exaction can not be sustained as a vocational tax, a specific tax; it does not purport to be such and Vernor v. Secretary of State, 179 Mich. 157 (Ann. Cas. 1915D, 128), must be taken as settling adversely the right of the legislature to provide for the specific tax in an act whose title is similar to the one before us. The act must stand or fall as the exercise of the police power of the State, as a regulatory measure. If the exaction is so clearly beyond the amount needed for regulation as to amount to taxation under the guise of regulation, or if so excessive as without reason to operate in restraint of trade and amounts to prohibition of the. conduct of a lawful business, the act must fall. We approach the question with the presumption that the act is valid, that the fee exacted is reasonable in amount and necessary for the proper regulation of the business. But this presumption is not a conclusive one. In the Vernor Case it was-said:
‘‘Such a measure will be upheld by the courts when plainly intended as a police regulation, and the revenue derived therefrom is not disproportionate to the cost of issuing the license, and the regulation of the business to which it applies.”
The act applies to all kinds of legitimate business conducted by transient merchants. It exacts a fee of over $3,000 a year. The service performed on behalf of the municipality consists of receiving the application and the issuance of the license by the clerk and receiving the money and accounting for it by him. The act provides for no policing or police regulation. Numerous cases have been before this and other courts involving licensing by municipalities and by the State itself; and while a considerable proportion of the cases involve municipal ordinances enacted under delegated authority which must be strictly construed, the underlying principles governing them must be the same. We shall first consider some of our own cases. In People v. Russell, 49 Mich. 617 (43 Am. Rep. 478), a license fee of $3 a day or $15 a year for hawkers and peddlers was sustained; in City of Grand Rapids v. Braudy, 105 Mich. 670 (32 L. R. A. 116, 55 Am. St. Rep. 472), an annual fee of $50 for pawnbrokers and $25 a year for junk dealers was sustained; in City of Grand Rapids v. Norman, 110 Mich. 544, where the original ordinance imposed upon hawkers and peddlers a license fee of not to exceed $15 a day but the common council had fixed the fee at $80 a year, the ordinance was sustained; in People v. Baker, 115 Mich. 199, a license fee of $5 a week for hawkers and peddlers was held not to be unreasonable; for the same business $10 a week and $50 a year was held not to be so excessive as to render the ordinance void in City of Muskegon v. Zeeryp, 134 Mich. 181; in People v. Grant, 157 Mich. 24 (133 Am. St. Rep. 329), a license fee of $2 a day, $10 a week, $25 a month and $50 for three months for a transient trader was sustained; in O’Hara v. Collier, 173 Mich. 611 (Ann. Cas. 1914D, 936), a fee of $4 a day and $100 a year for peddling flour and other cereal products where the business was extensive, was sustained; and in People v. Brazee, 183 Mich. 259 (affirmed by United States Supreme Court in Brazee v. Michigan, 241 U. S. 340 [36 Sup. Ct. 561, Ann. Cas. 1917C, 522]), a license fee of $100 in cities of over 200,000 inhabitants for license to conduct an employment bureau was sustained.
In Chaddock v. Day, 75 Mich. 527 (4 L. R. A. 809, 13 Am. St. Rep. 468), an ordinance requiring payment of $10 a month for a license to peddle meat in quantities less than one-quarter of an animal was held invalid and it was said by Mr. Justice Morse, speaking for the court:
“It is quite common in these latter days for certain classes of citizens — those engaged in this or that business — to appeal to the government — national, State, or municipal — to aid them by legislation against another class of citizens engaged in the same business, but in some other way. This class legislation, when indulged in, seldom benefits the general public, but nearly always aids the few for whose benefit it is enacted, not only at the expense of the few against whom it is ostensibly directed, but also at the expense and to the detriment of the many, for whose benefit all legislation should be, in a republican form of government, framed and devised. This kind of legis lation should receive no encouragement at the hands of the courts, and be only upheld when it is strictly within the legitimate power of congress, or the State or municipal legislatures.”
In Brooks v. Mangan, 86 Mich. 576 (24 Am. St. Rep. 137), it was said:
“The ordinance required every person soliciting a license as a hawker or peddler to pay $10 for the first day, and $5 for each subsequent day, if he traveled on foot; if he traveled with one horse, $20 for the first day, and $15 for each subsequent day; if he traveled with two or more horses, $25 for the first day, and $15 for each subsequent day. We think the ordinance invalid on account of its unreasonableness. Practically, if enforced, it would amount to a prohibition of the business.”
In City of Saginaw v. Saginaw Circuit Judge, 106 Mich. 32, an ordinance requiring a license fee of $10 a day by transient dealers, and which was not applicable to residents of the city, was by reason of such classification held invalid, and without deciding the question, the reasonableness of the fee was questioned ; in Brown v. Judge of Superior Court, 145 Mich. 413, a similar act to the one before us (Act No. 214, Pub. Acts 1905), was by reason of a provision contained in it permitting the municipal authorities to waive it in any particular case held invalid; and in Kenaston v. Riker, 146 Mich. 163, a license fee of $500 annually on the business of running a restaurant was held to be excessive. Other cases from this court might be cited but we have called attention to sufficient of our own cases to illustrate the holdings of this court.
We shall now consider the holdings in other jurisdictions. State v. Foster, 22 R. I. 163 (46 Atl. 833, 50 L. R. A. 339), cited by the prosecution, is the strongest case for the people which has been cited to us or which we have been able to find in the time at our disposal. The opinion is exhaustive and deals at length with the subject. It will be noted, how ever, that the court says that it reaches the conclusion it does with “considerable hesitation.” The State license fee was $200, and a local fee of $100 for towns less than 15,000, and $350 for towns over 15,000. In State v. Harrington, 68 Vt. 622 (35 Atl. 515, 34 L. R. A. 100), the act was similar to Act No. 191, Pub. Acts 1901 (2 Comp. Laws 1915, § 6984 et seq.), and the present question was not directly involved. The attitude of the courts in approaching the question is thus stated in Muhlenbrinck v. Commissioners, 42 N. J. Law, 364 (36 Am. Rep. 518) :
“It may not be easy, in every case, to determine with precision, from the amount of the fee charged, whether it is intended as a regulation or a tax, and all reasonable intendment should be in favor of its fairness and justness as a fee.”
In that case the ordinance was held invalid. A comparatively recent case, People v. Wilson, 249 Ill. 195 (94 N. E. 141, 35 L. R. A. [N. S.] 1074), had before it a licensing act applying to itinerant vendors of patent and proprietary medicines. We cite it only to the point that the license there involved was held to be so excessive as to be prohibitive and rendering the act invalid. It was there said:
“In this case the statute fixes the license fee to be paid by an itinerant vendor of patent and proprietary medicines at $100 per month, or $1,200 per annum. It would seem it would occur to any fair-minded man, at a glance, that the fee of $100 per month is so excessive that no itinerant vendor of patent and proprietary medicines could aiford to pay such license, and that the license fee so imposed would prohibit any person from vending such medicines except he had a drug store or other fixed place of business. In the Noel Case (187 Ill. 587 [58 N. E. 616]) a statute was held void which attempted to prohibit any person other than a registered pharmacist from vending patent and proprietary medicines, on the ground that it created a monopoly. If the reasoning of that case is sound, — and we have no doubt it is, — we think that a valid statute cannot be passed which accomplishes by indirection what it was held in that case should not be accomplished directly, — that is, instead of providing in direct terms by a statute that no person other than a druggist shall vend patent and proprietary medicines, pass a statute which imposes so high a license fee for the vending of patent and proprietary medicines that no itinerant vendor can afford to take out a license, the practical operation of which would be to give the druggists of the State a monopoly of that business.”
In Caldwell v. City of Lincoln, 19 Neb. 569 (27 N. W. 647), a license fee was exacted of auctioneers of $12 a day, and not to be issued for less than 10 days. It was held to be excessive and the ordinance invalid; in Sipe v. Murphy, 49 Ohio St. 536, a license fee of $25 a day for auctioneers was held to be excessive; an annual license fee of $500 on the occupation of railway ticket broker, “scalper,” or dealer was held to be excessive in Hirshfield v. City of Dallas, 29 Tex. App. 242 (15 S. W. 124); a license fee of $50 a year on coal oil wagons was held to be excessive in Waters-Pierce Oil Co. v. Hot Springs, 85 Ark. 509 (109 S. W. 293, 16 L. R. A. [N. S.] 1035); in City Council of Montgomery v. Kelly, 142 Ala. 552 (38 South. 67, 70 L. R. A. 209, 110 Am. St. Rep. 43), a license fee of $100 annually on merchants issuing trading stamps was held invalid; in City of Ottumwa v. Zekind, 95 Iowa, 622 (64 N. W. 646, 29 L. R. A. 734, 58 Am. St. Rep. 447), a license fee of $25 a day on transient merchants was held to be invalid; in City of Mankato v. Fowler, 32 Minn. 364 (20 N. W. 361), a license fee of $300 for auctioneers was held to be excessive; in Vansant v. Harlam Stage Co., 59 Md. 330, a license fee of $75 was exacted for operating omnibuses; it was said by the court:
“But we have-no need to resort to comparisons to enable us to determine the invalidity of so much of the ordinance of 28th April, 1882, as relates to pas senger omnibuses. If there were no other subjects except the omnibuses mentioned therein, the amount attempted to be levied upon these omnibuses shows clearly upon its face that it was an attempt on the part of the city authorities to exercise the power of taxation which had not been granted them by the State.”
See, also, State v. Blaser, 36 La. Ann. 363; City of Carrollton v Bazzette, 159 Ill. 284 (42 N. E. 837, 31 L. R. A. 522); City of Peoria v. Gugenheim, 61 Ill. App. 374; Town of State Center v. Barenstein, 66 Iowa, 249 (23 N. W. 652); Mayor, etc., of Americus v. Berner, 131 Ga. 802 (63 S. E. 347).
As we have pointed out, the license fee exacted under this statute exceeds $3,000 a year; this fee is levied under the guise of the police power for regulation. We have been unable to find any case which sustains the imposition of such a fee for regulation, for licensing alone. While a wide latitude must be given legislative discretion, and courts will not calculate to a nicety the exact expense of issuing licenses, there comes a point where the exaction is so palpably, so grossly excessive, that courts can not close their eyes to the fact that- such legislation is either taxation under the guise of regulation, or enacted in restraint of trade and for the purpose of prohibiting the con-' duct of the business.' The act applies to all transient merchants, both large and small dealers, and lays its hand upon all lawful business conducted by the class named. The exaction is upon its face so out of proportion to the expense of regulation of a lawful business, so unreasonable, so excessive that the act must fall.
The conviction will be reversed and the defendant discharged.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Steere, and Wiest, JJ., concurred. | [
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McDonald, C. J.
The defendant was convicted under an information charging him with a violation of the prohibitory liquor law, in that on the 30th of March, 1924, in the township of Robinson, Ottawa county, Michigan, he sold and furnished to one Lloyd Sellers one pint of moonshine whisky. The defendant is a farmer. Lloyd Sellers is a police investigator employed by the police department of Grand Haven, Michigan. It is claimed that on the date charged in the information, in company with one Bert Taylor, he went to the home of the defendant and purchased from him a pint of moonshine whisky, for which he paid $2. The defense was an alibi. After conviction a motion for a new trial was made on the ground that the verdict was against the great weight of the evidence. This motion was denied and the defendant has brought the case here on exceptions before sentence.
The assignments of error present questions relative to the admission of evidence and to the refusal of the. court to grant a new trial. Those in regard to the rulings of the court on the admission of evidence present no new questions and are not of sufficient importance to merit discussion.
In discussing the claim that the verdict was against the great weight of the evidence counsel for the defendant says in his brief:
“If this case had been any other kind it would never have been prosecuted on such unbelievable testimony. The juries in this county would convict a Frances Willard on a liquor charge.”
There is nothing in the record indicating that this defendant is in the Frances Willard class, but, if there were, it would still be the duty of the jury to convict if there was evidence establishing his guilt beyond a reasonable doubt. For in the exercise of their duties those called upon to administer the law should be no respecters of persons. It is- true that counsel outdid the prosecutor in the number of witnesses presented, who testified to the defendant’s alibi. But it is possible that the jury considered the fact that with one exception they were all members of the defendant’s family and might be interested in the outcome. At any rate, the circuit judge, who presumably is familiar with the convicting tendencies of Ottawa county juries, says that the verdict was justified by the evidence. He had the advantage of seeing the witnesses and of hearing them testify, and we should give some attention to his judgment as to the quality of their testimony.
The record is without error. The conviction is sustained and the circuit court will proceed to judgment.
Clark, Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Moore, J.
Plaintiff is the city engineer of Mt. Clemens. Defendant Kolowich is a banker and promoter. Defendant Pangburn is a promoter. This suit is brought to recover for work done by the plaintiff as an engineer. Upon the trial thé case was discontinued as to defendant Pangburn. After plaintiff had concluded his testimony the trial judge directed a verdict in favor of defendant Kolowich, for the reason that the contract sued upon was void because made on Sunday. The case is brought into this court by writ of error.
At the outset a question of the jurisdiction of this court arises. The record shows that the jury returned a verdict by direction of the judge in favor of the defendant, upon which judgment was entered February 8, 1923. It also shows that a motion for a new trial was denied August 21, 1923; that on January 19, 1924, a stipulation was filed extending the time to settle a bill of exceptions; that on January 26, 1924, stipulation to settle atta'ched bill of exceptions and waiver of irregularities was filed; that on January 28, 1924, bill of exceptions was signed, filed and entered. The record does not show what is commonly spoken of as a 20-day order.
No motion was made to dismiss the case for want of jurisdiction until the printed record and plaintiff’s first brief were filed in this court. The jurisdiction of this court was raised for the first time in the appellee’s brief filed March 12, 1925. The question of the jurisdiction of this court in cases at law has recently been before this court in the case of Walker v. Wayne Circuit Judge, 226 Mich. 393, and again in the case of Bilakos v. Robbins-Grayer, 228 Mich. 655. Upon the record in the instant case the court did not obtain jurisdiction to hear the case upon the merits.
In the last case cited above the court considered the question of costs in a case like the present one, and in dismissing the appeal for lack of jurisdiction gave the appellant costs of the motion, including the cost of printing the record and appellant’s briefs, and it is so ordered in the instant case.
McDonald, C. J., and Clark, Bird, Sharpe, Steere, Fellows, and Wiest, JJ., concurred. | [
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Steere, J.
While at large in Grand Rapids on parole from Ionia reformatory defendant was found to have violated his parole and returned to that institution. As a result of further investigation of his conduct while on parole complaint was made against him for breaking and entering a store in the city of Grand Rapids in the nighttime of July 21, 1924. Warrant was issued by the committing magistrate before whom the complaint was made and, when brought before him pursuant to the warrant, defendant waived examination. He was then held to the superior court of Grand Rapids for trial under the offense charged against him in the complaint and warrant. When there arraigned under an information ostensibly charging the offense for which he was bound over he pleaded guilty and was sentenced by the court to a term of from 6 to 15 years in the State prison at Marquette.
Up to the time of his sentence defendant had no counsel, but shortly thereafter counsel was procured for him and a motion promptly made to set aside the sentence and plea of guilty, and grant a new trial “of the matters and things alleged in the information,” for the reason that defendant claimed to be innocent of the offense and at first pleaded not guilty, but later was impelled to plead guilty by threats and promises of the officers who had him in charge to the effect that if taken back to Ionia for violation of his parol he would be held for the maximum period of his sentence, while if he pleaded guilty of the offense for which he was last arrested the charge against him for violating his parole would not be pressed and he would only get a short sentence for stealing from a store. This motion was denied and the case is here on assignments of error.
The most serious error assigned is that the information did not charge the offense for which he was sentenced. The complaint, warrant and commitment for trial are all in regular form, stating clearly in proper legal phraseology the statutory offense of breaking and entering a store in the nighttime with intent to steal, said building not being adjoining to or occupied as a dwelling. Offenses corresponding to or resembling common-law burglary are covered by statutes in this State, distinguishing by separate acts degrees of punishment according to the nature and magnitude of the offense. Such offenses owe their definitions to statute and when charged must be distinctly stated in substance as the statute provides, identifying and distinguishing the particular offense claimed from others of like nature specifically provided for by other acts. Hall v. People, 43 Mich. 417; Harris v. People, 44 Mich. 305; People v. Calvin, 60 Mich. 113.
Defendant was charged with and bound over for breaking and entering a store in the nighttime with intent to steal, and stealing a quantity of cigars, gum, cigarettes, and other items valued at $25. The information was evidently intended to follow the complaint and warrant and does so in most respects, but the prosecutor neglected to allege in the information filed whether the alleged breaking and entering took place in the nighttime or in the daytime. In Hall v. People, supra, it was held (quoting from the syllabus):
“An information alleging the breaking and entering of a store not occupied with a dwelling, but not stating whether it was done in the nighttime or in the daytime does not allege any offense under Michigan laws.”
This decision is squarely in point. Counsel for the prosecution concede that the sentence as pronounced cannot be sustained, but suggest that the information is good under section 15295, 3 Comp. Laws 1915, as amended by Act No. 323, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 15295), which provides a maximum imprisonment of five years for its violation, and only the excess in the sentence beyond the five years should be held invalid. It is manifest from the length of the sentence that it was pronounced on the theory defendant pleaded guilty to a charge of breaking and entering in the nighttime. What sentence the court would have imposed if not laboring under a misapprehension as to the offense for which defendant was being sentenced is not for this court to conjecture. • The sentence cannot be upheld by this court adopting a different theory than that under which it was imposed by the trial court. Both the conviction and sentence were invalid under the mistaken theory and course pursued.
Neither is defendant entitled to discharge under the theory of former jeopardy. He was sentenced on his plea of guilty for an offense not covered by the information to which he pleaded. No jury was impaneled and sworn to try him on the charges laid in the defective information. While his conviction and sentence must be set aside for the reasons stated and a new trial granted, it leaves a valid complaint, warrant and order of the magistrate holding him for trial in the superior court of Grand Rapids where, so far as shown here, a legal return by the committing magistrate of the preliminary proceeding and order holding defendant for trial are on file.
The judgment is reversed and the case remanded for such further proceedings following the magistrate’s return as parties may desire and that court determine in harmony with this opinion.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Fellows, and Wiest, JJ., concurred. | [
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Fellows, J.
Plaintiff filed a bill for divorce. Defendant countered with a cross-bill. Decree passed on the cross-bill. Defendant appeals from the division of the property. Plaintiff resides at Kalamazoo and is emplojmd at common labor most of the time. For the year preceding the hearing he earned $930 and sent about $300 of it to defendant, who lived at Constantine. The parties own a vacant lot in Fort Wayne, Indiana, worth about $500. They also own a home at Constantine; plaintiff claims it is worth $3,000; defendant claims it is worth but $2,200; it is incumbered in the sum of $1,000. The record fairly shows that around $3,000 has been put into it and the court found the equity to be worth $1,500. The furniture is insured for $1,500 but the trial judge was impressed that it was not worth that amount. Defendant claims to have paid for all of it herself, while plaintiff claims he paid for the most expensive pieces. Plaintiff has an old automobile and some stock in a company for which he formerly worked; both are worthless. The decree gave the defendant the furniture and the home at Constantine subject to a lien on the home in plaintiff’s favor for $500 from which was to be deducted the costs, the lien to be paid in two years with interest at 3 per cent, and gave plaintiff the vacant lot in Fort Wayne. Plaintiff was ordered to pay $5 a week for the support of a minor son, aged 11 years, whose custody was given defendant. Defendant has an interest of at least $2,000 in her mother’s estate. Plaintiff has no' property except as herein stated.
We hear chancery cases de novo; but we do not, and should not, reverse decrees unless we are persuaded they are not in accordance with the just rights of the parties. We are not so persuaded in the instant case. We think the decree makes an equitable division of the little property these parties possess. The boy seems to have had considerable illness but is now more robust and well advanced in school. Should conditions change application may be made to the circuit court in chancery to modify the award for his support.
The decree will be affirmed. Neither party will have costs in this court.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Steere, and Wiest, JJ., concurred. | [
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Clark, J.
On December 20, 1923, plaintiff’s finger was scratched and the skin broken while he was employed in defendant employer’s mine. On December 26th, there was swelling in his hand, arm and shoulder. He went to a physician, who gave treatment for nearly a month. At the hearing, the physician testified that the scratch had not caused, and had no connection with, the diseased condition of plaintiff, that he found no extension of poison from the finger by lymph canals or otherwise, no hemolytic or straight form streptococci; but found an abscess condition in the armpit, which gradually spread downward in the arm, a non-hemolytic form of streptococci.
Late in January, plaintiff went to another physician who found blood poisoning, that the straight form hemolytic streptococci were present. But both physicians agree that this infection had developed within 48 hours of the time of the examination. In this record there is no evidence by the physicians or by others to support a finding that plaintiff’s disability was due to the scratch.
Therefore the award is vacated.
McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Bird, J.
In the early evening, but after dark, plaintiff was riding his bicycle without a light in a westerly direction on West Main street in the city of Owosso. While he was passing the intersection of West Main street and Shiawassee he collided with defendant’s automobile, which was being driven by Josephine Payne, his 15-year old daughter. The automobile was being driven in an easterly direction on West Main street, and intended to, and did, turn to the left on Shiawassee street. It is the claim of plaintiff that the collision occurred by reason of the automobile “cutting the corner.” As a result of the collision plaintiff claims he was thrown from his bicycle and severely injured. He recovered a judgment and defendant assigns error.
1. Defendant complains of the admission of the following testimony:
“Q. After the establishment of the boulevard lighting system what was the custom of riding bicycles on the streets lighted by the boulevard system here in Owosso? (Objected to. Overruled.)
“A. Why, it has never been in force to my knowledge. (Stricken out.)
“A. They do ride bicycles on the streets. (Objected to.)
“Q. I am talking about a bicycle being driven on the streets lighted by the boulevard system, without a light on the bicycle? (Objected to. Overruled.)
“A. They ride on the streets without lights; yes, sir.
“Q. Was that the custom?
“A. Yes, sir.”
This testimony was admitted after the following testimony was drawn from plaintiff on cross-examination :
“Q. Had it been your custom to sometimes ride your bicycle under similar circumstances. Had you ridden it before that fall?
“A. Yes, sir.
“Q. Had it been your custom to sometimes ride your bicycle under similar circumstances that you had ridden it that fall, you ride home with your bicycle after dark without a light on, and of course, it was your intention that evening to ride that evening without a light on? (Objected to. Objection overruled and witness continues) :
“Q. To ride home with your bicycle after dark?
“A. Yes, sir.
“Q. Without a light on it?
“A. Yes, sir.”
Plaintiff argues that the testimony objected to was admissible because of the testimony on the same subject previously drawn from plaintiff on his cross-examination. There may be some doubt whether its admission can be supported on this ground. Defendant’s counsel had the right to show on the cross-examination of plaintiff that he violated the ordinance on the night in question, and had habitually violated the ordinance requiring a light on his bicycle as bearing on his contributory negligence on the evening of the accident. Testimony showing that plaintiff violated the ordinance was evidence of his negligence. Cook v. Johnston, 58 Mich. 437 (55 Am. Rep. 703); Westover v. Railway Co., 180 Mich. 373. After this testimony was admitted we think the testimony complained of was also admissible as bearing on the contributory negligence of plaintiff. If the ordinance were not enforced after conditions had changed and the business street was fully lighted, it would have some bearing on the conduct of plaintiff in proceeding without a light, although it would probably not wholly excuse his failure to observe it. We think no error was committed in admitting both bits of testimony quoted.
2. It was the claim of plaintiff that he was severely injured. This was denied by defendant, and the claim made that plaintiff was malingering. Testimony bearing on the physical condition of plaintiff, about a month after the accident and before suit was brought, was shown by plaintiff’s brother, who resided at Mt. Pleasant:
“Q. What was his condition as to being able to move about, walk, or get about?
“A. He could walk on crutches very slow. * * *
“Q. How did he get from the depot up to your house on that occasion?
“A. I went up onto the — the train, helped him off, helped him on my car and from the car.
“Q. Let me ask you, did he walk off rapidly or, quickly, or slowly or with some hesitation, or how was 7 ‡ ‡
“A. He walked very slowly on his crutches. I also assisted him, too.
“Q. Describe the assistance that was given to him in attempting to move about, walk around? * * *
“A. When he went to move around I helped him.
“Q. When you got him up to your house, how did he get out of the automobile and get into your house? * * *
“A. I helped him.
“Q. How long after he had been to your place was it before you did get a doctor, if you did get one ? * * *
“A. I saw a doctor that day, but the doctor did not see him that day.
“Q. Did you get a prescription or medicine from him?
“A. I went and called the doctor in, he appeared. * * *
“Q. I am trying to find out when it was you got the doctor to act professionally for your brother, if you did do that? Did you do that or did you not?
“A. I did; yes, sir. * * * The doctor examined him. * * * He gave some quieting medicine to him. * * * I think the doctor saw him not over three or four times, but I saw him myself more than that. When I saw him I got medicine for him. * * *
“Q. When he was up in Mt. Pleasant, what was there about his physical condition that you noticed different from what you had seen and observed in him before the time of his injuries?
“A. Well, he was a nervous wreck. (Stricken out.)
“Q. What demonstrations or emotions on his part did you observe representing his then existing physical condition? The court said you could answer it.
“The Court: Proceed. You may answer.
“A. Well, when anyone came to see him he would break right down and cry, he would cry.
“Q. He would break down and cry?
“A. Yes, sir; when anyone came around here at all, or if I would say anything to him sympathetically or anything like that, he would break down and cry. I never saw that condition existing before the injury in question. Nights he groaned nearly all night.
“Q. What did you do to relieve his then condition, if anything?
“A. I gave him quieting medicine.
“Q. From whom was the medicine obtained?
“A. Dr. Pullen.”
Repeated objections were made to this testimony as. contravening the rule laid down by this court regarding the admission of medical and other testimony, showing the physical condition of the injured person.
The rule in the leading case of Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 537 (31 Am. Rep. 321), regarding such testimony, is:
“It is difficult to lay down any very clear line of admission or exclusion where the exclamation refers to the feelings of the moment. But we think it would not be safe to receive such testimony in any case where it is not the natural and ordinary expression of pain, called out without purpose or in the course of medical treatment. The unstudied expressions of daily life, or the statements on which a medical adviser is expected to act, and which, if feigned, he should have skill enough to subject to some test of truth, stand on a footing which removes them, in general, from suspicion. But we cannot think it safe to receive such statements which are made for the very purpose of getting up testimony, and not under ordinary circumstances. The physicians here were not called in to aid or give medical treatment. The case had been relinquished long before, as requiring no further attendance. They were sent for merely to enable the plaintiff below to prove her case. The whole course of the plaintiff was taken to no other end. She had in her mind just what expressions her cause required. They were therefore made under a strong temptation to feign suffering, if dishonest, and a hardly less strong tendency, if honest, to imagine or exaggerate it. The purpose of the examination removed the ordinary safe-guards which furnish the only reason for receiving declarations which bear in a party’s own favor.”
Also in Comstock v. Township of Georgetown, 137 Mich. 541, it was held that expressions of pain, vocal or otherwise, made to physicians called by plaintiff not to give medical aid but to make up medical testimony, are inadmissible.
It does not appear to us that the testimony quoted infringes this rule. The exclamations of pain and the indication of weakened nervous force testified to were not manifested in the presence of a physician for the purpose of qualifying him to give testimony.. The testimony quoted contains no statement by the; plaintiff of his physical ills. These manifestations, were made while on a visit to his brother’s home and before suit was started. The manifestations do not appear to have been made under conditions which would induce plaintiff to simulate for the purpose of affecting his claim. The manifestations of pain and nervous weakness appear to have been natural expressions of present suffering and not voluntarily made for any ulterior purpose. We think they were admissible.
Elizabeth Young was riding with defendant’s daughter when the collision occurred. She was a witness, and while describing how the accident occurred, she made the statement that “Josephine stopped the car as soon as she could.” This was stricken out upon motion of counsel. We think the ruling was right. It was competent for the witness to state how soon Josephine stopped the car and what she did in bringing it to a stop, but it was incompetent for her to state the conclusion that “Josephine stopped the car as soon as she could,” as that was invading the province of the jury.
We have examined the remaining assignments but we find nothing which merits a reversal of the judgment;
The judgment is affirmed.
McDonald, C. J., and Clark, Sharpe, Moore, Steere, and Fellows, JJ., concurred with Bird, J. | [
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Sharpe, J.
Plaintiff brought suit against the Barnard Toy Company for breach of a contract of employment. A suit involving similar questions was also begun by Harry H. McHenry against the defendant. When these causes came on for trial before Judge Cross of the 20th circuit, sitting in the Wayne circuit, it was stipulated upon the record that the verdict of the jury in the McHenry case “may be taken by the court as the standard and basis, without the aid of a jury for the entry of a verdict and judgment” in the McConnell case on the basis of $150 for McConnell for every $125 allowed McHenry. The jury in the McHenry case returned a verdict in his favor in the sum of $2,250 on September 25, 1924. On the basis agreed upon, McConnell was entitled to a verdict and judgment for $2,700.
On September 30th, plaintiff served notice that the court would be asked on October 4th to enter a judgment pursuant to the stipulation. This motion was held in abeyance until October 17th, when a formal entry of judgment was made. The record thereof was approved by Judge Cross on October 18th. On November 11th, execution was issued on the judgment and levy made. On November 13th, a written application was made to defendant, the then presiding Wayne circuit judge, to vacate the judgment and the execution issued thereon, and an ex parte order entered by him pursuant thereto. Plaintiff thereupon moved to vacate said order. This motion was denied. We are here asked to compel the granting of such an order.
It appears that while the motion for judgment was held in abeyance an order was made by the presiding judge extending the time “within which a motion in arrest of judgment may be made” to October 28th. Defendant’s counsel insist that in view of this order the judgment was improvidently entered. In our opinion, the order extending time was a nullity. There was at that time no entry in the court journal to which it could apply. If the Barnard Toy Company desired to show cause why judgment should not be then entered, it should have done so on the hearing of the motion for judgment. Aside from this, the order extending time was made ex parte. The motion was a special one, and orders may not be made on such motions without notice unless specially permitted by statute or rule. Circuit Court Rule No. 15.
The judicature act contains special provisions affecting the powers and duties of circuit judges in circuits where there are three or more judges (3 Comp. Laws 1915, §§ 12124-12140). In section 12139 it is provided that—
“no order or decree shall be set aside or vacated except by the judge making the same, unless such judge shall be absent or unable to act.”
The judgment herein entered, approved by Judge Cross, was fair upon its face and binding upon the parties unless vacated or set aside. The defendant was without jurisdiction to hear the motion to vacate it unless it affirmatively appeared that Judge Cross was absent from the circuit or unable to act. Jageriskey v. Kelemen, 222 Mich. 575. No such showing was made. The motion was a special one and, as heretofore stated, notice thereof to the plaintiff was an essential requisite to confer jurisdiction on the defendant to hear it. No such notice was given.
For these reasons, the order made by defendant vacating the judgment should have been set aside by him on the motion made therefor. The. writ will issue as prayed for, with costs against the Barnard Toy Company.
McDonald, C. J., and Clark, Bird, Moore, Steers, Fellows, and Wiest, JJ., concurred. | [
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Fellows, J.
The affidavit upon which the justice issued a search warrant, without stating the time, states as the grounds of affiant’s belief:
* * * “and that the grounds of his said belief are as follows: (he has smelled said liquor on the premises); (he has observed a large number of persons going to said premises and coming away without any apparent legitimate business there).”
Armed with the search warrant, based on this affidavit, officers entered defendant’s place of business, and told him they had a search warrant. They testify that a woman employee on hearing this statement quickly passed down behind the counter and they heard something rattle; one or both of them immediately went behind the counter and discovered that the employee had emptied the contents of a pitcher into a sink and turned on the water. The officer turned off the water and one of them sopped up the contents of the sink with a sponge and squeezed it into a bottle; upon an analysis it proved to have sufficient alcohol content to be intoxicating. One of the officers testifies :
“After we had completed that part of our job, we went down cellar by going through the north part of the building and downstairs. We hunted the cellar over until we found the pipe leading from the sink in which pipe was a trap or goose-neck. I unscrewed the burr and lower part of the goose-neck. Mr. Denyes held a can under the trap and we caught a quantity of moonshine whisky and water. We lost more than we got. I identify people’s Exhibit C as the water and liquor that we caught from the trap, it had' an odor which I identify as moonshine whisky.”
The officer’s return to the search warrant is as follows:
“State of Michigan,
“County of Shiawassee — ss.
“I hereby certify and return that by virtue of the within warrant I searched for the intoxicating liquors and implements therein named at the place therein directed and described and found 1/2 pint oí moonshine whisky, more or less.
“Dated at the city of Corunna this 22nd day of September, A. D. 1924.
“Geo. P. Lawcock,
“Undersheriff.”
Defendant made the appropriate motion to suppress the evidence thus obtained, which motion was denied. Upon the trial appropriate objections were made to receiving the liquor in evidence but these were overruled and both the liquor sopped up with the sponge and that obtained in the cellar were received in evidence. It is the only evidence upon which the conviction rests.
■ Before the argument of this case the opinion in People v. Musk, ante, 187, was handed down. Upon the argument it was conceded, and properly so, that under the holding in that case the search warrant in this case was invalid. But it is insisted that nevertheless the liquor should not be suppressed but should be admitted in evidence upon the authority of People v. Woodward, 220 Mich. 511, and People v. Chomis, 223 Mich. 289. It is somewhat difficult to perceive how this contention can be sustained upon this record. The officers definitely and positively swear that all they did was done under the search warrant. But, be that as it may, neither of the cases cited sustain the contention. In both of the cases cited the liquor was in plain view of the officers and no search was made or was necessary. Here the officers were obliged to go behind the counter in one instance, and in the cellar in the other instance, to search for the liquor. These were places to which the public was not invited and where it had no right to go. Doubtless the officers assumed their warrant was valid and they had the right to make the search. The record is clear that they would not have made the search or seized the liquor had they not so believed. Upon principle the case is not unlike People v. De La Mater, 213 Mich. 167, and is controlled by it. See, also, People v. Halveksz, 215 Mich. 136; People v. Conway, 225 Mich. 152.
The trial judge should have granted the motion to suppress. Without the evidence unlawfully obtained, no case is made against defendant.
The conviction will be set aside and the defendant discharged.
McDonald, C. J., and Bird, Sharpe, Moore, Steere, and Wiest, JJ., concurred. Clark, J., did not sit. | [
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Carr, J.
Plaintiff as guardian of the person and estate of Johanna Hughes, her mother, filed this suit in circuit court to obtain injunctive relief against the defendants. At the time of Mrs. Holland’s appointment as such guardian, in October, 1947, Mrs. Hughes was approximately 90 years of age. Her husband deceased in 1935, leaving as his heirs the widow and 3 daughters. By agreement between the parties the widow was given a life estate in, or at least the income from, a farm, belonging to the estate, comprising approximately 100 acres. Mrs. Hughes resided on this farm with her daughter Mrs. Mary B. Miller, who had lived with her parents for some time prior to the father’s death. The record indicates that Mrs. Hughes was supported during the period in question here by the income derived from the farm.
The defendant Robert Miller is the great-grandson of plaintiff’s ward, and the other defendant is his wife. The bill of complaint alleges in substance that defendants have unreasonably consumed the food provided for Mrs. Hughes and have used her home improperly for laundry operations; that Robert has a violent temper; that he has used improper language in the presence of plaintiff’s ward; and that defendants have disregarded notices from the plaintiff to remain away from the premises. The bill further asserts that, if defendants are permitted to continue in the conduct referred to, irreparable injury to the ward and her property will result. An injunction to restrain such conduct was sought.
Defendants filed their answer denying that the plaintiff was entitled to the relief sought, and asserting that they went to the premises of Mrs. Hughes and ate meals there at her invitation and also on the invitation of Mrs. Mary B. Miller, the grandmother of Robert. The answer further alleged that the grandmother was residing with plaintiff’s ward pursuant to an agreement executed between them in October, 1935, copy of such agreement being attached to the answer. The instrument in question referred to Mrs. Miller’s services in helping to care for Mr. Hughes prior to his death, and provided for her living with her mother so long as the parties mutually agreed thereto.
On the trial of the case in circuit court plaintiff testified in support of the averments of her bill of complaint. It appears from her statements that she thought defendants ate too many meals at the home of Mrs. Hughes and her daughter Mrs. Miller, that any use by them of the premises for laundry purposes was improper, that Robert’s conduct was subject to criticism, and that because of prior difficulties with the law in which he had been involved he ought not to be allowed on the premises at all. She further indicated that she did not object to her mother entertaining friends and relatives other than the children and grandchildren of Mary Miller, plaintiff’s sister. Her testimony also discloses that following her appointment as guardian she had not seen any improper conduct on the part of Robert toward his great-grandmother, nor had she received any complaints from her ward as to snch conduct.
Testifying in his own behalf, Robert Miller admitted that he had been in some difficulty when he was 15 years of age, and that he had on occasions indulged in intoxicating liquor to excess. He claimed, however, that he had reformed. At present he is approximately 20 years of age. It further appears from defendants’ proofs that the laundry facilities in the home of plaintiff’s ward were not used by them except on a few occasions, when the work was actually done by Mrs. Mary B. Miller and defendant Margaret. It was further shown by the proofs that they had resided in the vicinity of the home of Mrs. Hughes for a portion of the time only, after the appointment of plaintiff as guardian of her mother. It was defendants’ claim in substance that they had not excessively infringed upon the hospitality of their grandmother and great-grandmother.
After listening to the proofs of the parties the trial judge came to the conclusion that the facts disclosed did not justify the granting of the injunctive relief sought by plaintiff. A decree was accordingly entered dismissing the bill of complaint, and plaintiff has appealed.
On the trial of the case the agreement above referred to between Mrs. Hughes and her daughter Mrs. Miller was offered in evidence, and was received over plaintiff’s objection. On behalf of plaintiff it is contended that the exhibit was not competent. Apparently it was offered for the purpose of throwing light on the situation existing in the home of plaintiff’s ward, particularly with reference to the relationship existing between parties involved in the instant controversy. The record does hot support the suggestion of plaintiff’s counsel that such agreement was tainted with fraud. Neither is there any evidence indicating that it was not made on the date appearing'therein. No claim is made'that"in October, 1935, Mrs. Hughes was not fully competent to execute an agreement of this character. Whether it whs supported by a valid consideration is not material, inasmuch as defendants claim no rights based on it. Hot the purpose for which it was offered and received, it was admissible. It may be noted in this connection that Mrs. Miller testified, without contradiction, that she contributed to the purchase of groceries for use in the home.
It is also claimed by plaintiff that defendants should.not have been permitted to testify as to invitations to them from Mrs. Hughes and Mrs. Miller. Such testimony was given by way of explanation of defendants’ visits to the home and the hospitality extended-to them there. It tended to explain the conduct of which plaintiff complained and against the continuance of which she sought equitable relief. The claim is stressed that Mrs. Hughes was not mentally competent to invite anyone to eat meals in her home, but the record, including the testimony of plaintiff, does not support such claim. Plaintiff stated in substance that her mother was able to carry on conversations with her, that she allowed her to handle checks received from the sale of cream, and that she furnished her with a checking account. Obviously plaintiff did not regard her mother as incapable of understanding what she was doing in ordinary transactions.
It is further claimed that in receiving the testimony as to invitations extended to defendants by Mrs. Hughes the trial court disregarded the provisions of CL 1948, § 617.65 (Stat Ann § 27.914) and particularly the following proviso therein:
“Provided further, That when the testimony of any person would be barred in case of the death of any of the persons hereinbefore mentioned, it shall also be barred if such person shall have been ad judged to be and still is at tbe time of the trial insane or mentally incompetent, as to all matters, which, if true, must have been equally within his knowledge at a time when he was sane and mentally competent.”
The reading of the proviso quoted indicates that it has no application in the instant case. The invitations in question were extended by Mrs. Hughes to defendants after the proceedings in probate court resulting in plaintiff’s appointment as guardian. We are not concerned with transactions taking place before incompetency was adjudged. Moreover, the testimony of which plaintiff complains was not offered on the theory of establishing contractual rights, but rather as bearing on the conduct of the defendants. The opinion of the trial court indicates that he so considered it. Plaintiff’s claim of error in the admission of the proof is without merit.
The principal question at issue in the case is whether the facts established by the proofs of the parties entitle plaintiff to the relief sought. It is doubtless true that certain conduct in which Robert Miller indulged prior to the time that plaintiff was appointed as guardian for the person and estate of her mother was subject to criticism. The trial judge came to the conclusion that the proofs did not indicate the likelihood of a repetition of such conduct. He had the advantage of seeing the witnesses and listening to their testimony, and this Court cannot say that his conclusion was not well founded. It is a fair inference that Mrs. Hughes felt very kindly toward the defendants, and found some degree of pleasure in showing her regard by extending hospitality to them. The further fact should be noted in this connection that as a small boy Robert lived in her home, and she was responsible, in part at least, for his upbringing.
It is the theory of the plaintiff that as guardian of the property of the ward she is entitled to exclude from the premises of the ward any person or persons that she may not desire to admit. Emphasis is placed on the duty of the guardian to properly manage and conserve the estate of the ward. It is insisted in consequence that the extending by the ward of hospitality to others is entirely subject to the control of the guardian. It does not appear, however, that the acts of Mrs. Hughes in seeking to befriend the defendants are impairing the estate to any appreciable extent. It is a fair conclusion that the agreement of the parties, after the death of Mr. Hughes in 1935, was prompted, in part at least, by a desire on the part of the daughters to insure sufficient income for the support of the mother in reasonable comfort during the balance of her life. The conclusion is not justified that the conduct of which plaintiff complains places such support in jeopardy. The proofs wholly fail to disclose the value of the food that has been furnished to defendants, nor what proportion thereof may have been furnished by the grandmother, Mrs. Miller.
The record indicates rather clearly that an unfortunate family feud has existed for some time past, and that the present case has resulted therefrom. Under the circumstances equity should not interfere. The controlling principle was stated by this Court in Roy v. Chevrolet Motor Car Co., 262 Mich 663, 668, as follows:
“Granting injunctive relief is within the sound discretion of the court. The exercise of such discretionary power must not be arbitrary. Decision must be based upon the facts of the particular case. A strict legal right, if incompatible with the equities of the case, does not necessarily entitle one to equitable redress.”
In Youngs v. West, 317 Mich 538, 545, the Court quoted with approval from 30 CJS, pp 328, 329, as follows:
“Broadly speaking the sound discretion of the court is the controlling guide of judicial action in every phase of a suit in equity. So the granting of equitable relief, is ordinarily a matter of grace, and whether a court,of equity will exercise its jurisdiction, and the propriety of affording equitable relief, rests in the sound discretion of the court, to be exercised according to the circumstances and exigencies of each particular case. Of course, this discretion is not an arbitrary one, but must be exercised in accordance with the fixed principles and precedents of equity jurisprudence, and in accordance with the evidence.”
The trial court correctly held that the situation existing in the case at bar is not such as to justify interference by a court of equity. The protection of the interests of the ward does not require the granting of the injunctive relief sought against defendants. As the trial court suggested in his opinion, she should be permitted to enjoy, during the balance of her life, her associations with her relatives, including the defendants. The legal rights of the plaintiff as guardian do not entitle her to equitable relief as a matter of right.
The decree of the circuit court is affirmed. No costs are awarded inasmuch as appellees have not filed a brief.
Sharpe, C. J., and Bushnell, Boyles, Reid, North, Dethmers, and Butzel, JJ., concurred. | [
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North, J.
Plaintiff herein seeks mandamus in this Court to compel Ingham county circuit judge, Marvin J. Salmon, to vacate his order of November 3, 1948, whereby plaintiff’s motions to reopen and take further testimony were denied in a proceeding wherein the Michigan public service commission had made a rate-fixing order on December 13, 1945. We will herein refer to plaintiff, Michigan Bell Telephone Company, as the company, and to the Michigan public service commission as the commission. To aid in presenting the factual background we note in chronological order the following phases of this proceeding.
October 3, 1944 — Rate proceeding instituted.
December 13, 1945 — The commission made an order reducing and fixing rates to be charged for certain telephone service, effective December 31, 1945.
January 11, 1946 — The company filed a bill of complaint in this proceeding in Ingham county circuit court, alleging in substance that the commission’s order of December 13th was confiscatory.
February 1, 1946 — -The company obtained a temporary injunction against enforcement of the rates fixed by the December 13th order, but conditioned that the amount collected by the telephone company in excess of the December 13th rate order should be kept in reserve by the company to abide final decision. By October, 1948, this amount had accrued to $10,500,000.
July 9,1946 — Issue having been framed and hearing completed, the Ingham county circuit judge, Paul G. Eger, ordered that the amplified record completed before him be transmitted to the commission, as provided by statute (CL 1929, § 11715 [Stat Ann § 22.1456]).
February 14, 1947 — The commission having completed its reconsideration in the light of the amplified record, filed with the circuit court its report and determination whereby the telephone company was relieved to the extent of approximately 25 per cent, of the reduction in its service charges as provided in the December 13, 1945, order. The result of the foregoing brought the case again before the circuit court, but the issue was the validity of the commission’s order as modified, instead of its order of December 13, 1945.
April 1, 1947 — The company filed in the circuit court proceeding a motion to reopen the case and take further testimony. This motion was disposed of by a stipulation in open court that, as sought in the motion, there should be considered in evidence monthly reports of the company to the commission from June to December, 1946, inclusive, and also the affidavit of Ferry B. Allen which was filed in support of the motion.
July 7, 1947 — The company again made a motion to reopen the proofs, but before hearing this motion Judge Eger died, July 19,1947. Months passed with no action by either party.
May 5, 1948 — The company made a so-called supplementary motion to reopen the proofs, the case having now been assigned to Circuit Judge Salmon.
November 3, 1948 — -After prior hearing (incident to which the city of Detroit as an intervenor filed a brief in opposition to this latter motion) the circuit judge denied plaintiff’s motions of July 7, 1947, and May 5, 1948, to reopen the case for further testimony.
December 31, 1948 — The company filed in this Court a petition for mandamus to compel Judge Salmon to vacate his order denying the company’s motions to reopen the proofs. Plaintiff’s petition for mandamus was opposed by the circuit judge, represented by the attorney general. Thus tire issue here presented is this: Should this Court grant mandamus as prayed?
In addition to the foregoing there should he noted the following facts and circumstances incident to the development of this prolonged litigation. Subsequently to February 14, 1947, when the commission’s modified rate order was transmitted to the circuit court and subsequently to April 1, 1947, when the company filed its first petition to reopen the proofs but before the hearing on April 24th of this motion, which matter was disposed of by stipulation, the company experienced a strike of its employees starting in April, 1947, and settled May 20th, following. In support of the company’s July 7, 1947, motion to reopen the proofs a showing was made that its cost of operation by reason of increase of wages resulting from the strike would be approximately $5,500,000 per year. But comparatively soon after the settlement of the strike the company, on August 27, 1947, filed with the commission a petition for .approval of increased rates. This matter was heard by the commission and on October 14, 1948, the commission by its order granted the company an increase of rates “designed to increase its revenues (probably annually) approximately $8,217,000.”
It is somewhat important to note that on April 24,1947, at the hearing of the company’s first motion filed April 1, 1947, to reopen proofs, in stipulating to supplementing the record as hereinbefore noted, attorney Williams, representing the defendant commission, stated:
“It is my understanding that if the record is so expanded, it will not be necessary for it to be returned to the commission, but that we will then be in a position to go forward with this court’s decision upon the merits of this controversy.”
In response to the above the attorney representing the company stated to the court: “I am in agreement with Mr. Williams’ statement.” From the foregoing it appears that as of April 24, 1947, by agreement of both litigants this matter, except filing briefs, was fully submitted to the circuit court. The two motions to reopen proofs denied by Judge Salmon were made subsequently; and decision in this mandamus proceeding turns upon whether in denying these motions the circuit judge was guilty of an abuse of discretion or otherwise in error.
In this type of cases the procedure before the commission and thereafter in the circuit court is purely statutory.. CL 1929, §§ 11711-11715 (Stat Ann §§ 22.1452-22.1456). It is. too plain even to justify comment that this procedure is designed to accomplish speedy final determination of issues of the character here involved. Obviously that is of prime importance and quite indispensable to fair and effective regulation of rates to be charged by public utilities. This phase of the applicable law must be kept in mind in reaching decision herein. If the circuit judge had ruled otherwise than he did in the instant case, the result would have been the taking of additional testimony, and thereafter in compliance with the statutory provisions the circuit judge would have transmitted the record back to the commission for further consideration. The result would have been that the instant case would be in substantially the same status, so far as final decision is concerned, as it was when the original proceedings were started in October, 1944, or when plaintiff’s rates were first ordered reduced in December, 1945. Procedure which would result in such delay should be avoided if possible to do so without violating the rights of an interested party.
In the instant case plaintiff’s contention is indicated by the following, quoted from its brief:
“Procedural due process under the Fourteenth Amendment to the United States Constitution requires that in a case brought for protection of constitutional rights such as a claim of confiscation, the issue must be determined on proofs brought down to a time as nearly as practicable to the date of the decision. Such rights are not to be deterniined on prognostications as to what the results may be when the actual results of the period are available.”
In this connection plaintiff contends it is within the general equity jurisdiction of the court to secure to plaintiff its constitutional right of protection against confiscatory rates. The Michigan statute does vest that power in the court by the grant of review of the commission’s rate orders. Resort thereto has been had in the instant case, and the matter is still pending in the circuit court ready for final decree based on the record made. But the conduct of such proceedings should be as provided in the applicable statute above cited which contemplates expeditious determination of rate controversies. By such procedure the telephone company was not deprived of making a record down to the approximate time of agreed submission of the issue on April 24, 1947. If, later, other circumstances developed which have had a material bearing on the adequacy of permitted rates, subsequent proceedings before the commission were available. Obviously there must be a termination at some point to á rate controversy. Otherwise no practical result can be accomplished in such proceedings. Holding to that effect is not a deprivation of due process of law.
A rate order which is confiscatory is an unreasonable order and cannot be sustained. In City of Detroit v. Michigan Railroad Commission, 209 Mich 395, 433 (PUR1920D, 867), we said:
“On matters involving the exercise of good common sense and judgment only, the determination of the commission must be held to be final unless such determination in its application results in the establishment by ‘clear and convincing’ proof of a rate so low as to be confiscatory or so high as to be oppressive.”
In view of the above we are not in accord with the italicized portion of the following statement in plaintiff’s brief:
“What this court has heretofore referred to as ‘strictly statutory’ jurisdiction, * * * is jurisdiction to determine whether the orders made by the commission are unreasonable and therefore unlawful, * * * and has no relation to the issue of confiscation.”
In the return of the circuit judge the following, which we think is sound in law, appears:
“The statute in such case made and provided, PA 1913, No 206, * * * contemplates a speedy review and determination of the questions involved,, and Section 16 thereof, CL 1948, § 484.116 (CL 1929, § 11715 [Stat Ann § 22.1456]), mapping procedure when new evidence is introduced, contemplates that the court shall transmit a copy of such evidence to the commission; * * * and if the circuit judge is bound to take additional testimony and transmit it to the commission, this could be done time and time again, and the speedy review contemplated by law would prove interminable. * * *
“If conditions changed during the period of time immediately following the date of the commission’s order (December 13, 1945), the plaintiff’s remedy was to file a new petition with the commission, seeking increase of rates, rather than to prolong the pending review interminably by taking testimony in relation to such changed conditions.”
The rate proceedings in the instant case were instituted in 1944. An order was made by the commission December 13, 1945. By the exercise of reason able diligence tbe proceedings, which except for filing briefs were fully submitted April 24,1947, should have been concluded long prior to the present. This was obvious to the circuit judge who denied plaintiff’s petition to reopen the case in November, 1948. Such denial was not an abuse of discretion nor did it deny plaintiff due process of law.
“One seeking the writ of mandamus must abide by the rules relating .thereto, namely, that it is a writ of discretion and not of right; does not lie to review the exercise of judicial discretion; and is not granted to work an injustice.” Van Coppenolle v. City of Detroit (syllabus), 313: Mich 580.
Plaintiff’s petition for mandamus is denied. The issue being one primarily of public importance, no costs are awarded.
Sharpe, O. J., and Bttshnell, Boyles, Reid, Dethmers, Butzel, and Carr, JJ., concurred.
CL 1948, § 484.116. — Reporter.
CL 1948, §§ 484.112-484.116. — Reporter.
See sections 14 and 16 of the cited act (PA 1913, No 206 [CL 1948, §§ 484.114, 484.116]). | [
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North, J.
After hearing on the merits in the circuit court in chancery the relief sought by the bill of complaint herein was denied and this appeal followed. .Subsequently to the inception of the appeal, plaintiff, Lawrence E. Colgrove, died, but the suit was revived and the appeal is prosecuted by. representatives of his estate; However, for convenience .we shall refer to Lawrence E. Colgrove as plaintiff and appellant.
Claiming that his status is that of a third-party beneficiary, plaintiff brought this suit against defendant, David Goodyear, as executor named in the will of Carrie Colgrove, deceased, and as the beneficiary under her will who received the property involved herein. The relief sought is specific performance of an alleged oral contract to make by will a specific devise and bequest of certain real estate and personal property. The oral contract relied upon is alleged by plaintiff to have been made between plaintiff’s father, Philip Colgrove, and Carrie Col- grove, who was Philip’s second wife; and in effect was that by her will Carrie should leave to Philip’s 2 children the Colgrove home property and contents (with certain exceptions) which were given to Carrie by the will of Philip Colgrove. He was divorced from the wife of his first marriage in 1897, and remarried shortly thereafter. Plaintiff and his sister, Mabel Colgrove Ranney, were the children of the first marriage. Philip Colgrove died testate in 1930. His daughter Mabel died in 1937, leaving a surviving husband but no children. The death of Philip’s second wife, Carrie Colgrove; occurred in 1947.
Philip Colgrove executed his last will and testament December 28, 1928, and by it made disposition of his estate evaluated somewhat in excess of $100,-000. This will, which was probated, provided for several bequests to others than members of testator’s family. The testator bequeathed certain specified personal effects to plaintiff, and. as the only other immediate provision for either of his 2 children he provided a bequest of $5,000 to each but only to be payable to the extent necessary to make that amount together with such insurance payments as either child might receive from life insurance carried by testator in which the children were beneficiaries. But, subject to intervening rights, the 2 children were-to share equally with right of survivorship in the residue of testator’s' estate, which was made subject to payments of $250 per month out of income or principal to Carrie Colgrove during her lifetime, and also subject to payment during Carrie’s lifetime of taxes, insurance, heating, et cetera, incident to the home property of testator. Plaintiff’s sister Mabel predeceased Carrie Colgrove and in consequence plaintiff asserts the right to receive all of the residue of Philip Colgrove’s estate, amounting, as inventoried, to nearly $22,000. In further disclosure of the factual background of this litigation we quote paragraph 5 of Philip Colgrove’s will:
“Fifth, To my wife, Carrie G. Colgrove, I give, devise and bequeath the home and four lots we now live upon at the corner of Green and Washington street, described as lots Nos. 836-837-867-868 of the city of Hastings, together with the contents of the home of every name, nature, kind and description, including my private library together with automobiles and other personal property. It being understood and agreed between my wife, Carrie G. Colgrove, and myself, that the home, in the event she survives me, is to remain undisturbed during her lifetime and that she is to have the absolute title to the property, and to sell or dispose of the home and lots, or any of them, and if she shall so desire to rebuild a smaller home on one of the back lots, but that at the death of my said wife, she has promised and agreed to carry out my wishes that the library shall be given to my daughter, Mabel C. Stebbins (Ranney) and my son Lawrence E. Colgrove, and all of the household goods except such goods and furnishings as came from her girlhood home shall be given in equal shares to my two children, Mabel C. Stebbins (Ranney) and Lawrence E. Colgrove; and that in the event she shall survive me that she shall make her will conveying to my two children the homestead and lots we now occupy and the personal property herein named.
“This latter clause is only explanatory and in no way to interfere with her title to the home, the real estate and the personal property in connection therewith, as I have implicit faith and confidence that in the event she survives me, her will will be made immediately in accordance with this understanding.”
Carrie Colgrove, Harry Hayes and defendant Goodyear qualified and served as executors named in Philip Colgrove’s will. When the estate was closed they were discharged, December, 1930; and as provided in a testamentary trust the portion of Philip’s estate not otherwise disposed of by his will was turned over to Hayes and Goodyear as trustees named in the will. Mr. Hayes died in 1935 and thereafter Goodyear served as sole trustee until the death in July, 1947, of Carrie Colgrove, who was the sole beneficiary under the trust. Carrie Col-grove disposed of 2 of the 4 lots which passed to her under the quoted fifth paragraph of her husband’s will; but at the time of her demise she still owned the home property consisting of the other 2 lots and the dwelling thereon. This home property was of the inventoried value of $18,000.
After having made 3 previous wills, Carrie Col-grove in August, 1937, made a will which was admitted to probate. We quote it in part :
“Second : At the time of making this, may last will and testament, I have fully in mind the terms and provisions of the last will and testament of my late husband, Philip T. Colgrove. Since his death, however, there has been a definite change in circumstances, particularly relating to the value of property, brought about primarily as a result of the depression, for which reason I am not following exactly the wish expressed in his will, because I know that he did not anticipate the changed conditions and facts that now present themselves to me, and I make the provisions hereinafter set forth after careful consideration, with these thoughts in mind.
“Third : I give, devise and bequeath my home, together with all curtains, shades and draperies, located at the corner of Green and Washington streets in the city of Hastings, Michigan, comprising lots 867 and 868 of the original plat of said city, to David S. Goodyear (a second cousin of testatrix), to have and to hold forever.
“I have given the subject of this devise very careful thought and consideration, and by way of explanation I have in mind the changed conditions in real estate within the city of Hastings, the burden that may result from the ownership of the home property in the way of taxes, maintenance and upkeep, and I therefore feel that the home on Green street should go to some one who can properly maintain it and live in the house as a home, and who will not find it too heavy a burden and responsibility. A further consideration in making this devise is the unfailing kindness and help at all times most willingly given me by David S. Goodyear, of whom I have always been very fond and for whom I have a very high regard.”
Probate proceedings in Carrie Colgrove’s estate were pending when the bill of complaint herein was filed, December 4, 1947. Validity of the above-mentioned wills is not challenged. Nor is the power of the court to grant relief of the character herein sought challenged, provided the right thereto is proven. The basic issue on this appeal is whether or not plaintiff proved by sufficient competent testimony that an oral contract, as claimed by plaintiff, was entered into between Philip Colgrove and his wife, Carrie Colgrove. The trial court found that plaintiff failed to prove the alleged oral contract and decreed dismissal of his bill of complaint.
We find it of first importance to determine whether statements in Philip Colgrove’s will, upon which plaintiff relies very much, are competent as proof in support of plaintiff’s case, as he asserts; or are they hearsay and incompetent, as defendant contends? In substance these statements or recitals in the will are as follows:
“It being understood and agreed between my wife, Carrie G. Colgrove, and myself, that the home, in the event she survives me, is to remain undisturbed during'her lifetime and that she is to have the absolute title to the property, * * * but that at the death of my said wife, she has promised and agreed to carry out my wishes that (testator’s library and household furnishings) * * * shall be given in equal shares to my two children, Mabel C. Stebbins (Panney) and Lawrence E. Colgrove; and that in the event she shall survive me that she shall make her will conveying to my two children the homestead and lots we now occupy and the personal property herein named. * * *
“I have implicit faith and confidence that in the event she survives me, her will will be made immediately in accordance with this understanding.”
When plaintiff offered in evidence the will of Philip Colgrove, defendant objected as follows — “to its materiality and relevancy, and also to its competency in connection with the claim of the plaintiff in this case, it being a self-serving statement therein, not under any exception to the hearsay rule, and therefore to be excluded under the hearsay rule, where there is some mention of an alleged agreement between Mr. Colgroye and his wife.” The trial court received the will in evidence over defendant’s objection. In our judgment this ruling of the trial court was erroneous. The issue submitted for determination was not what testamentary disposition Philip Colgrove desired or sought to make of his estate. Instead the controlling issue was: Did testator and his wife enter into the alleged agreement? As to that issue the recitals above noted were clearly hearsay and defendant was afforded no opportunity of cross-examination concerning them. They were not recitals adverse to the interests of the testator. Instead these statements in Philip Colgrove’s will were adverse to the interests of Carrie Colgrove, who under Philip’s will became the absolute owner of the property in suit, and who was the opposite party to the claimed agreement. Even if it were to be assumed, as plaintiff asserts in his brief, that the noted statements in Philip Colgrove’s will were not self- serving, nonetheless as to the controlling issue in this case they were hearsay.
“Theory of the hearsay rule. The fundamental test, shown by experience to be invaluable, is the test of cross-examination. * * * It is here sufficient to note that the hearsay rule, as accepted in our law, signifies a rule rejecting assertions, offered testimonially, which have not been in some way subjected to the test of cross-examination.” 5 Wigmore on Evidence (3d ed), § 1362.
“Hearsay testimony is not admissible under any circumstances because the essential right of cross-examination is absent.” People v. Chambers, 279 Mich 73, 78.
The fact that the statement of a deceased person is contained in a formal document does not relieve it from the bar of the hearsay rule, unless the statement is against the interest of the deceased person. Such in principle is the holding in Re Corby’s Estate, 231 Mich 235. While the issue therein was notably dissimilar from that in the instant case, in Wolf v. Troxell Estate, 94 Mich 573, it was held that the will of the deceased against whose estate the suit was brought “should not have been admitted” in evidence for the purpose of disclosing the character of a son of deceased, which was sought to be shown in support of the defense relied upon.
Numerous decisions of this Court are in accord with the foregoing. Among them Collins v. Shaw, 124 Mich 474; Boyle v. Waters, 206 Mich 515; Sweeney v. Jordan, 223 Mich 196.
In support of plaintiff’s contention that the recitals in Philip Colgrove’s will are not inadmissible as hearsay, the following cases are cited in plaintiff’s brief. Van Fleet v. Van Fleet, 50 Mich 1; Thomas v. Hens, 224 App Div 252 (229 NYS 725); Golland v. Golland, 84 Misc 299 (147 NYS 263); Rudd v. Gates, 191 Ky 456 (230 SW 906). A reading of these cases discloses that the court did not in any of them pass upon the question just above considered. The question was not raised as to whether certain testimony received in the respective cited cases was so received in violation of the hearsay rule. And to the same point plaintiff also cites Bond v. McMahon, 94 Mich 557; Rogers v. Krumrei, 143 Mich 15; In re Dowell’s Estate, 152 Mich 194. In each of these cases certain testimony was held admissible as being part of the res gestae; but in the instant case it cannot be said under the record before us that the alleged agreement upon which plaintiff relies was res gestae of the making of Philip’s will, the contents of which so far as shown by the record were not known to Carrie Colgrove prior to the death of her husband.
From other jurisdictions plaintiff cites Vance v. Park, 15 Ohio CC 713; Fickes’s Estate, 59 Pa Super 535; Russell v. Jones (CCA 5th circuit), 68 CCA 487 (135 Fed 929). But in each of these 3 cases the promisor as well as the promisee was present at the time the latter made the will, at which time the collateral agreement was also entered into. Under such circumstances it might well be held that what was said or embodied in the will was part of the res gestae of the whole transaction, and therefore admissible in evidence. But, as just above noted, the facts in the instant case are materially different in that, so far as the record discloses, Carrie Colgrove was not present at the making of Philip’s will nor did she have knowledge of its context prior to his demise.
As noted earlier herein, this is a suit for specific performance of an alleged oral contract claimed by plaintiff to have been entered into between Philip Colgrove and his wife. As to the controlling issue, it seems almost too clear for argument that any statement, oral or written, made by Philip Colgrove not in the.presence of his wife, to the effect that such a contract was consummated between them, would be hearsay. The obvious purpose of such testimony would be to establish a contract which would restrict the rights which the wife, in the absence of a contract to the contrary, would possess relative to making such testamentary disposition of the property as she saw fit. It follows that any statement of this character by Philip Colgrove would be adverse to the rights of Carrie Colgrove and, also, to the rights of the defendant herein, who claims the property in suit under the provisions of the will of Carrie Col-grove, deceased.
If, on our hearing de novo of this case, the quoted statements in Philip Colgrove’s will are excluded as being incompetent, as we think they must be, then comes the question as to whether plaintiff has made a case by other testimony.
Nothing in the will of Carrie Colgrove, from which we have hereinbefore quoted the material portion, in any persuasive degree tends to prove the alleged contract. In stead in her will the reference is merely to “the wish expressed in his (Philip’s) will.” The inferences which appellant seeks to draw from attendant circumstances, which inferences may or may not be accurate and justifiable, surely afford little, if any, proof of the contract which plaintiff seeks to have specifically performed. A careful review of all the testimony on which plaintiff relies fails in our minds to adequately prove the alleged contract. In so stating we have not overlooked the testimony of plaintiff’s wife, upon the competency of which we deem it unnecessary to pass. The most pertinent testimony given by plaintiff’s wife was: “I heard Mrs. Colgrove tell Lawrence, my husband, that he had nothing to worry about, that she had drawn her will in accordance with his father’s wishes.” This testimony referred to a prior will of Carrie Col- grove, made in March, 1930, shortly after her husband’s demise, and which was withdrawn from the custody of the probate court in 1935, obviously for cancellation. But at most this testimony is to the effect that Carrie Colgrove had “drawn her (earlier) will in accordance with his (Philip Colgrove’s) * * * wishes.” It made no reference to a contract or agreement in compliance with which that earlier will was drawn, and the exact provisions of that will were not disclosed in this case. We quite agree with the circuit judge that this testimony of plaintiff’s wife, if admissible, had “very little weight (if any) in proving the alleged agreement to execute a will on the part of Carrie G. Colgrove.”
Our review of this record brings the conclusion that the trial court made the proper disposition of this case, on the ground that plaintiff failed to prove the alleged contract between Philip Colgrove and Carrie Colgrove of which plaintiff sought specific performance. The decree entered in the circuit court is affirmed, with costs to appellee. •
Sharpe, C. J., and Bushnell, Boyles, Reid, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Boyles, J.
In this case plaintiffs filed a bill of complaint in the circuit court for Wayne county in chancery asking that the defendant be restrained from foreclosing or disposing of 2 chattel mortgages which the defendant held on personal property of the plaintiffs; that the defendant be compelled to cancel and discharge said mortgages; and that plaintiffs be awarded statutory $25 damages and double •costs for defendant’s neglect or refusal to discharge said mortgages after tender of the amount due. After issue was joined the circuit judge, on plain tiffs’ motion and after argument, without taking testimony, granted to plaintiffs the relief sought by their bill of complaint, and entered a summary decree based on the pleadings.
The defendant appeals . from such decree and claims (1) that the court lacked jurisdiction because plaintiffs had not complied with the mandatory provisions of the statute providing for a chancery proceeding to compel discharge of a chattel mortgage, and (2) that material issues of fact were raised by the pleadings on which the defendant was entitled to a hearing on the merits.
Chronologically, the circumstances giving rise to this appeal are as follows:
On December 30, 1946, plaintiffs executed and delivered to the defendant, as mortgagee, a chattel mortgage on certain personal property of the plaintiffs in the sum of $15,125. Said mortgage was duly filed in the office of the register of deeds for Wayne .county on the same date.
On March 2, 1948, plaintiffs executed and delivered to the defendant, as mortgagee, a second chattel mortgage on certain personal property of the plaintiffs in the sum of $3,960. Said mortgage was duly filed in the office of said register of deeds on March 3, 1948.
On September 24, 1948, plaintiffs tendered to the defendant $1,559.62 principal and $699.73 interest claimed by plaintiffs to be the balance due defendant on said mortgages after crediting payments made thereon and after deducting certain items included in the mortgages which plaintiffs claim were usurious. The plaintiffs demanded that the debt be cancelled and the mortgages discharged.
On the same day plaintiffs filed the instant bill of complaint in chancery to compel the defendant to discharge said mortgages, and asking that plaintiffs be awarded $25 damages and double costs as pro vided for in CL 1948, § 566.202 (Stat Ann § 26.952).
In said bill of complaint the plaintiffs alleged that the defendant, in obtaining said mortgages, had added to the principal thereof certain amounts as service charges and auditing fees and other items,, resulting in said mortgages being usurious.
On October 8, 1948, the defendant filed answer to said bill of complaint, denying material allegations of fact alleged therein, and particularly denying the allegations as to service charges and auditing fees, et cetera, including the claim that the defendant had charged interest in excess of 7 per cent, per annum.
On October 18th plaintiffs filed a motion for summary entry of a decree on the pleadings, setting up that the defendant by answer had admitted all allegations of fact in the bill of complaint. On October 20th the defendant filed an amended answer to the bill of complaint, stating further denials as to material allegations of fact in the bill of complaint, particularly denying the sufficiency of the amount of the tender alleged to have been made. The answer also set up affirmatively, in added paragraphs A to J inclusive, new matters regarding the applications and the loans secured by said chattel mortgages. Also, on October 22d, the defendant filed a sworn answer to plaintiffs’ motion for the summary entry of a decree on the pleadings, denying material allegations in said motion, and setting up allegations of fact in reply to said motion.
On October 29th, plaintiffs, without filing a reply to the new matter set up in the amended answer, filed an amended motion for entry of decree on the pleadings, claiming, as before, that all material facts alleged in the bill of complaint had been admitted. On November 30,1948, without taking testimony, the court, after hearing arguments of counsel, without filing an opinion, entered an order granting plaintiffs’ motion for a summary decree, and on Decem ber 14th entered a decree accordingly. In it, after reciting tbe facts alleged in the bill of complaint, it was decreed that tbe chattel mortgages be cancelled and discharged; that the promissory notes given in connection therewith be delivered to plaintiffs forthwith; and that the defendant be permanently enjoined from attempting to foreclose, sell or dispose of said notes and mortgages. The decree also awarded plaintiffs $25 penalty, and double costs, under CL 1948, § 566.202 (Stat Ann § 26.952), for defendant’s refusal to accept the tender and discharge the mortgages.
On December 29, 1948, the defendant filed claim of appeal. On February 2,1949, about a month after the entry of the decree and after the filing of the appeal therefrom, plaintiffs filed in the lower court what purports to be a reply to the further averments of new matter set up in the defendant’s amended answer filed October 20th.
1. Did the court have jurisdiction of the case? On this appeal the defendant claims that the court did not have jurisdiction, because the plaintiffs, by filing the bill of complaint on the same day that plaintiffs made the tender of payment to the defendant, failed to comply with the mandatory provisions of CL 1948, § 566.202, supra. This statute allows a mortgagee 7 days after tender of the amount due during which to accept the tender and give the mortgagor a discharge. In that respect the bill of complaint was prematurely filed. The statute provides that the mortgagor may recover $25 damages and double costs where the mortgagee “shall for the space of 7 days after being requested so to do in writing by the parties interested, refuse or neglect to discharge the same.”
Plaintiffs claim, and the defendant does not deny, that when the tender was made and the bill of complaint was filed on September 24th, the defendant had refused to’ accept such an amount in full payment, and had threatened to foreclose the mortgages. The law does not require a useless formality. Hanesworth v. Hendrickson, 320 Mich 577. Furthermore, the defendant filed an answer to the hill of complaint and, also, an answer to plaintiffs’ motion for summary decree, without raising this question, and it is now urged for the first time, in this Court. Under these circumstances, the defendant has suffered no harm and defendant’s present claim that the court was without jurisdiction has no merit.
2. Defendant’s answer and amended answer to the hill of complaint raised material questions of fact -as to the charges for services, appraisal fees, investigation, legal expenses, recording fees, interest, et cetera, which the defendant alleged plaintiffs agreed to pay, and which plaintiffs alleged constituted usurious interest wherefore plaintiffs deducted the same from their tender.
A summary judgment or decree will not be upheld where there are material issues of fact raised on the pleadings.
“The rule governing entry of judgment on pleadings has been stated in' substance as follows:
“ ‘Court may enter judgment on pleadings where they disclose unconditional admission of liability for amount for which judgment is entered.’ Detroit Trust Co. v. Smith (syllabus), 256 Mich 376.” Auto Purchase Corporation v. Johnston, 319 Mich 634.
The decree is vacated and the case remanded for hearing, with costs to appellant.
Sharpe, C. J., and Bushnell, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Bushnell, J.
Defendant William C. Beckenhauer, doing business as East Side Gear & Tool Company, has appealed from a judgment of $7,900 in favor of plaintiff Martin R. Musser, who was injured in defendant’s place of business while in the employ of the Perfect Surface Plate Company, an independent contractor.
Musser, a scraper-hand and machine repairman,, on November 27, 1942, went with his foreman and others to Beckenhauer’s place of business. They took with them a cast-iron surface plate, 3 feet by 6 feet, which weighed from 1,500 to 1,700 lbs. This plate was to be used as a precision gauge block or template in connection with the resurfacing of the bed of defendant’s universal boring machine.
Musser and his fellow employees took the plate from their truck with their own chainfall and lowered it onto a hand truck. Their chainfall, however,, could not be used to raise the plate above the bed of the boring machine on which they were to work, and in order to save the time of going back to their own shop and getting another chainfall they used one which belonged to Beckenhauer. The surface plate had a highly finished surface, hand-scraped to a tolerance of three-tenths of one thousandth of an inch, and it was necessary to protect it carefully against damage. In order to move it from the delivery truck to the boring machine it was placed on the hand truck with its ribs down and its face up. In order to use it as a gauge on the bed of the boring machine it was necessary to invert the plate so that its face would be down. Defendant’s chainfall was suspended from an I-beam with a traveling trolley, to which it was connected by an S-hook about 9 feet from the ground. This chainfall carried a notice indicating that it had a lifting capacity of one ton; and in addition Beckenbauer’s employee, Henry Meinhardt, was questioned as to its carrying capacity. Chains were fastened around the surface plate, which was protected by blocks of wood at the points of contact, and while the plate was being lifted from a horizontal to a vertical position the S-hook broke and the chainfall struck Don R. Richards, plaintiff’s foreman, on the head. The plate then slipped and crushed Musser’s foot, resulting in multiple fractures and injury to the soft tissue, and subsequent amputation of the second, third and fourth toes.
Beckenbauer was called by plaintiff for cross-examination as an adverse witness. He stated that he employed some 35 to 40 men in his shop and that on the morning in question neither he nor his son, who was his foreman, was present. He said that the chainfall was inspected from time to time and had recently handled a job weighing a little over a ton, and, so far as he knew, was in good condition at the time of the accident.
Richards stated that when he examined a piece of the broken hook after the accident it appeared to be crystallized and that it had been welded at one time. He said that a part of the surface of the break was dirty and a part clean, and that the dirty surface would indicate an old crack.
It is undisputed that Beckenhauer was under nduty to provide the Surface Plate Company with any equipment whatsoever for the performance of its work; and, at best, this record only discloses that the equipment in question was gratuitously furnished.
In the light of these facts, the first question is the nature of the duty which defendant Beckenhauer owed to Musser.
In considering this question it will be assumed (though strenuously argued to the contrary by defendant) that Meinhardt had, and exercised, at least apparent authority to permit plaintiff and his fellow employees to use Beckenhauer’s chainfall.
The general rules applicable hereto are stated in 35 Am Jur, p 591, under the heading “Master and Servant,” § 162, entitled “Defects in Instrumentalities Furnished by Contractee,” as follows:
“The courts have in numerous cases applied the doctrine that a contractee who agrees to provide a contractor with a particular instrumentality for the purpose of the stipulated work is ordinarily liable for any injury which a servant of the contractor may sustain, during the progress of the work, by reason of a defect which was known to the principal employer, or which he might have discovered by the exercise of reasonable care, at the time when the instrumentality was turned over to the contractor. In some cases, the right of action was predicated mainly upon the consideration that the instrumentality in question belonged to the category of things which are variously designated by the expressions ‘imminently,’ or ‘inherently,’ or ‘intrinsically,’ dangerous. Another theory with respect to the rationale of the principal employer’s liability is indicated by statements to the effect that the claimant was entitled to recover on the ground that the case belonged to the category of those in which ‘a resulting injury * * * might have been anticipated as a direct * * * consequence of the performance of the work contracted for, if reasonable care was omitted in the course of the performance.’ It has been ruled that the duty of the contractee with respect to seeing that an instrumentality furnished by him is free from defects is to be regarded as extending to the whole pf the period during which it is being used by the contractor.
“Where the instrumentality was gratuitously furnished by the contractee for the purposes of the stipulated work, the rule appears to be that an action brought by a contractor’s servant to recover for injuries caused by a defect therein is maintainable, or not maintainable, according to whether the contractee had actual knowledge of the existence of the defect at the time when the transfer of the instrumentality occurred.”
For a comprehensive treatment of contractees’ liability, see 44 ALR beginning at page 932, particularly § 34, page 1078 et seq.
The testimony in the instant case does not show that Beckenbauer, the contractee, had actual knowledge of the existence of any defect in the chainfall; nor does plaintiff’s declaration aver that Beckenbauer knew of such defect. The. application of the rules of law hereinbefore stated makes it unnecessary to discuss other questions raised by the parties. Defendant’s motion for a directed verdict should have been granted.
The judgment is reversed and the cause is remanded for entry of judgment in favor of defendant. Costs to appellant.
Sharpe, C. J., and Boyles, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred.
See CL 1948, § 617.66 (Stat Ann § 27.915). — Reporter. | [
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Dethmers, J.
Plaintiffs, a number of the individual defendants, and others, were members of an unincorporated voluntary association for profit, formed for the purpose of investing in and operating a printing business. They made contributions for that purpose with which the association bought on land contract the real estate, equipment 'and' good will of a printing business. The association ultimately paid most of the purchase price. The members and directors adopted resolutions to incorporate. Before the incorporation was accomplished dissension, as stated in plaintiffs’ brief and supported by the record, arose among board members. The dissension seem to have centered around who was to have charge of the act of incorporation, how and by which attorney it was to be done. A majority of the directors, all defendants herein, met without notice to the minority group and authorized the formation of defendant Atlas Power Publishing Company, hereinafter called the Atlas Corporation, and the transfer to it of the association property and assets. Subsequently, defendants Alex and Mary Ispas and Detroit Sales Circulator Printing Company, vendors in the land contract, upon receipt from the Atlas Corporation of the balance due on the contract, conveyed to it title to the printing business, real estate and equipment sold to the association under the contract. The corporation thereafter conducted the printing business and in so doing contracted some debts. The corporation and its officers, all defendants herein, offered to issue stock to association members on the basis of the amount theretofore invested by each in the association. Sixty-five members accepted. Fifty-one members, including plaintiffs, represented by the minority directors’ group of the association, disavowed the incorporation and refused to accept corporate stock,
Plaintiffs’ bill prays that the conveyance of the printing business and real estate to the Atlas Corporation be set aside, that the vendors in the land contract be required to convey to the association, that the Atlas Corporation be required to account for moneys received in the operation of the printing business and restrained from operating it further, and for damages. Defendants’ cross bill prays that the court determine the value of the said property and assets and the value of each association member’s interest therein, and that by decree each member be permitted to accept the equivalent of his respective interest either in stock in the corporation or in cash from the corporation and that thereafter the corporation be decreed to be the owner of said property and assets. The court decreed that said property and assets be sold at public auction, subject to the debts incurred in the operation of the printing business by the Atlas Corporation, and that the proceeds be distributed to the association members according to their respective interests. Plaintiffs appeal.
The meritorious question presented is whether the court can order partition of the association assets when (1) all association members do not consent thereto, the association being solvent and not having fulfilled its purpose, and (2) neither plaintiffs’ bill nor defendants’ cross bill specifically prays for such relief.
“A ‘joint adventure’ is defined as ‘an association of two or more persons to carry out a single business enterprise for profit.’ Fletcher v. Fletcher, 206 Mich 153.” Keiswetter v. Rubenstein, 235 Mich 36 (48 ALR 1049).
“There must be a contribution by the parties to a common undertaking to constitute a joint adventure; * * * and a community of interest as well as some control over the subject matter or property right of contract.” Hathaway v. Porter Royalty Pool, Inc., 296 Mich 90, 103 (138 ALR 955).
“Here was a special association of several persons in a single venture, seeking profit without any actual partnership or corporate designation. The law designates such an enterprise a joint adventure and the participants joint adventurers.” Lane v. Wood, 259 Mich. 266.
By these tests the association amounted to and was a joint adventure.
“A joint adventure is distinguishable from * * * tenancy in common because the latter lacks the feature of adventure.” Hathaway v. Porter Royalty Pool, Inc., supra, 102.
Aside from that distinction, joint adventurers are as tenants in common with relation to the real estate acquired under the joint adventure.
“Joint adventurers take title to real estate purchased by them as tenants in common.” 48 CJS, Joint Adventures, § 7, p 834 (citing Clark v. Sidway, 142 US 682 [12 S Ct 327; 35 L ed 1157]).
Courts of equity have jurisdiction, both under and independent of the statute (CL 1929, § 14995 et seq. [Stat Ann § 27.2012 et seq.)), to decree partition of property held by cotenants, the right of a cotenant to partition is absolute, and when the character of the property is such as to be insusceptible of partition among the cotenants, as is manifestly the case here, the court may order a sale of the property and distribution of the proceeds. Henkel v.. Henkel, 282 Mich 473.
Cases involving nonprofit, social, benevolent or ecclesiastical organizations, in which title to property is in the association and cannot be said to belong to the individual members and in which it is indicated that the association may not be dissolved or the property sold without the consent of all the members, are not in point in cases, as here, of joint adventures for profit in which the members own the property as cotenants. In the absence of an agreement or statute to the contrary, no conceivable principle of law or equity supports the idea that persons once engaged in a joint adventure for profit, under which property is acquired, may not thereafter became disengaged or recover their property interests therein without the consent of all. In Moore v. Hillsdale County Telephone Co., 171 Mich 388, 398, involving a nonprofit corporation, which case is chiefly relied upon by plaintiffs as authority for the proposition that an association may not be dissolved without the consent of all the members, it is nevertheless said:
“The association * * * is a joint adventure. * * * If there are reasons growing out of internal dissensions, or debts, or a failure to secure the joint benefit sought for by the associates, for the interference of a portion of its members in behalf of all of them in judicial proceedings, we have no doubt of the powers of a court of chancery to investigate and to grant relief as it would do in case of a partnership.”
Citing 6 Callaghan’s Michigan Pleading & Practice, p 489 (which, in turn, cites Smith v. Rumsey, 33 Mich 183), Leslie v. Mendels on, 302 Mich 95, and Miller v. Casey, 176 Mich 221, plaintiffs contend that the decree for partition or sale of assets is improper because not specifically prayed for by the bill or cross bill. Examination of these cases discloses that the interdiction is against relief of a character not germane to the issues presented by the pleadings, rather than against relief not specifically prayed. In Drinski v. Drinski, 309 Mich 479, plaintiff brought suit to set aside transfers of real estate and personal property by a mother to the defendant daughter on the grounds of fraud. The court denied plaintiff the relief sought, declared the conveyances valid and entered a decree practically quieting title in defendant, although she had prayed for no affirmative relief. This Court affirmed the decree on the theory that the relief granted to defendant, though not prayed for in the pleadings, was germane to the issues presented in plaintiffs’ bill. In the instant case, the pleadings allege the facts concerning the existence of the joint adventure, the investments made by the members, the acquisition of property, formation of the corporation, the acceptance of stock therein by some of the members, willingness of the corporation to issue stock to the other members and their refusal to accept it, and the dissension existing between the members. Defendants’ cross bill specifically alleges:
“That as a practical matter a partition of the assets of the organization with the great preponderance of interest therein being held by the corporation will amount to the same result as giving the minority members an opportunity to retire upon payment of the fair value of their interest.”
The cross bill concludes with the prayer for relief as hereinbefore noted. The decree for sale of the assets and distribution of proceeds to the members is germane to the issues thus presented and is, therefore, proper.
The record convinces us of the correctness of the trial court’s finding that after the incorporation the same management as under the association was continued, the company was run in the same manner and with the same people as before, and the fact of incorporation caused the members no damage whatsoever. The corporation and its officers at all times operated the business as and for the entire membership and it in no wise appears that the indebtedness incurred in such operation resulted from fraud or mismanagement. The business had lost a great deal of money and was in financial straits before the incorporation and apparently continued so thereafter, although its condition was beginning to improve. Under the circumstances it cannot be said that the court, in decreeing a sale of the assets, was in error in requiring that the property be sold subject to such indebtedness.
Decree affirmed, with costs to defendants.
Sharpe, C. J., and Bushnell, Boyles, Reid, North, Butzel, and Carr, JJ., concurred.
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Sharpe, C. J.
The Equitable Life Assurance Society of the United States filed a bill of complaint in the chancery court of Wayne county seeking a determination as to who is entitled to the proceeds of an insurance policy issued to Frederick J. MacMahon.
The bill of complaint alleges that in 1928 Frederick J. MacMahon made application to plaintiff company for a policy of life insurance in the amount of $5,000 payable to his children, Frederick Joseph, Hugh Keswick and Maureen Margaret MacMahon, in equal shares with right to change the beneficiary or assign the policy reserved to him. The application was approved and the policy issued. In 1942, the policy lapsed for nonpayment of a premium and after foreclosure of a loan outstanding against the policy the balance of the total cash value was applied to the purchase of extended term insurance in the amount of $3,238.33. On or about November 23, 1943, Frederick J. MacMahon wrote to plaintiff insurance company stating that he desired to change the beneficiaries named in said policy and requested forms for that purpose. On November 30, 1943, plaintiff company mailed to Frederick J. MacMahon its form for change of beneficiary together with a letter explaining its requirements and stating, among other things, that “the form should be signed in ink and should ' be free from alterations or erasures,” and that the; change of beneficiary would become effective “only when indorsed on the policy.” On November 29, 1944, plaintiff received at its home office the policy together with a request for change of beneficiary executed on its form naming defendant Anna Jane Healy as the proposed beneficiary. The application for change of beneficiary was dated December 6, 1943, and bore evidence that certain writing had been erased, and that the name of the proposed beneficiary and the words “no relationship” had been written over the erasure with a different pen and ink from that used for the signature. On December 6, 1944, plaintiff company wrote Frederick J. MacMahon that the request for change of beneficiary was not acceptable and enclosed another form to be executed by him.
On or about January 4,1945, plaintiff company received notice from a Detroit lawyer that Frederick J. MacMahon had died on December 4, 1944. The letter requested forms for presentation of a claim on said policy. On September 24, 1945, defendant Anna Jane Healy commenced an action at law on said policy in the circuit court of Wayne county. Plaintiff company, being unable to determine whether the' MacMahons, named as beneficiaries in the insurance policy, or Anna Jane Healy, who claims to be the latest beneficiary, is entitled to the proceeds of the insurance policy, filed its bill of inter-pleader to have a court determination of this issue.
The claimed beneficiaries filed answers to the bill of interpleader and on November 6, 1946, a decree was entered providing that plaintiff pay into court the sum of $3,238.33; and that upon making such payment the insurance company be dismissed as a party to the cause. The money was paid to the clerk of the court on November 6, 1946. On April 30, 1947, defendants MacMahon filed a petition for an order to produce the change of beneficiary document in Toronto, Canada, for examination setting forth that they desired the document to he examined by an expert at Toronto. The reason given was that it was not practical for the expert to bring his large and bulky apparatus to the State of Michigan to perform certain tests. An affidavit in opposition to the above petition for transmission of the document to Canada for examination was filed on May 26, 1947, in behalf of Anna Jane Healy, a claimant of the proceeds of the insurance policy.
On May 26,. 1947, the trial court entered its order requiring the document to be sent to Toronto, Canada, for examination, testing and analysis. Leave to appeal from said order having been granted by the Supreme Court, Anna Jane Healy urges that the mentioned order amounts to and constitutes an abuse of discretion on the part of the trial court.
In the trial of the issues involved, the application for insurance by Frederick J. MacMahon, the insurance policy and the so-called change of beneficiary would of necessity be exhibits and should be under the control of the court so that they could be produced for inspection and identification. Under' Court Rule No 40 (1945), any party to a law action or chancery suit may make application for the production of books and papers in order to prepare for trial of the cause. The order issued by the trial court in the case at bar would place vital papers beyond the jurisdiction of the court and thus deny to appellant the right to a subpoena duces tecum. In our opinion it was error to issue an order that would place such possible exhibits beyond the power of the court to regain them.
The order of the trial court is reversed, with costs to appellant.
Bushnell, Boyles, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Dethmers, J.
Plaintiff’s declaration contained 2 .counts sounding on express contract, the first of which was abandoned at trial. The second count alleged that in July, 1940, defendant’s predecessor bank was an approved mortgagee under the national housing' act and, as such, eligible to sell its mortgages insured by the National Housing Adminis tration to the Federal National Mortgage Association, hereinafter called FNMA, under a contract between them whereunder the bank retained the right to service the mortgages thus sold to FNMA and receive from the latter a servicing fee of 16f per cent, of the monthly interest payments collected by the bank for FNMA on such mortgages; that the bank entered into an oral agreement with plaintiff by which it was agreed that if plaintiff would initiate, obtain and close such mortgage arrangements, cause them to be assigned to the bank and sold for the bank to FNMA with servicing rights at the above fee retained by the bank, the bank would pay plaintiff as compensation therefor an amount equal to all the monthly servicing fees on said mortgages in excess of $1 per month per mortgage interest payment for the life of the mortgage until such fee no longer exceeded $1 per month; that under the agreement plaintiff, from July, 1940, to January, 1942, obtained a large number of such mortgages for the bank and caused them to be sold to FNMA as above outlined; that the bank in July, 1943, entered into, a written agreement with plaintiff confirming his right to such compensation in accord with the above oral agreement ; that thereafter defendant acquired the assets and assumed the liabilities of said bank, including said contract liability; that plaintiff was paid compensation accordingly until May 11, 1945, but that since that time defendant has neglected and refused to pay plaintiff its share of such fees. Defendant’s answer substantially admits the above allegations except that it alleges that under the agreement .payments from the bank to defendant were to cease whenever the bank, for any reason, ceased receiving such fees from FNMA and that plaintiff’s compensation was to be limited to the stipulated portion of fees received from FNMA only; further, that after May 11, 1945, the bank no longer received such fees from FNMA and that the latter was not after that date obligated to pay fees to defendant wherefore defendant was no longer obligated to pay plaintiff.
In evidence is the written agreement of July, 1943. It does not specify, as claimed by defendant, that plaintiff should receive payments out of servicing fees only if such fees are received from FNMA. A fair reading of the agreement leads to the conclusion that plaintiff’s right to be compensated out of the servicing fees continues regardless of the source from which defendant receives them.
On trial it developed from the testimony and an exhibit offered by the defendant that on April 7, 1945, FNMA wrote defendant that “The Association (FNMA) again offers to sell to its servicing agents such of the FHA II mortgages they are now servicing for the Association as they desire to purchase.” The testimony shows that at that time plaintiff had also become a FHA approved mortgagee; that FNMA would sell the'mortgages which the defendant was servicing not only to the bank itself but equally to such other approved mortgagee as the defendant might nominate; that plaintiff at that time made defendant three proposals; (1) that the defendant nominate certain other approved mortgagees, named by plaintiff, who were willing to buy the mortgages and continue the servicing arrangement with and payment of fees to the defendant; (2) that defendant buy the mortgages, do its own servicing and continue the payments to plaintiff; (3) that defendant nominate plaintiff to buy the mortgages, which plaintiff was willing and able to buy. Defendant actually bought the mortgages as of May 11,1945, and thereafter took the position that it was no longer receiving servicing fees from FNMA and, therefore, owed plaintiff nothing further. From judgment for defendant the plaintiff appeals.
In its opinion the trial court stated;
“There are two questions involved, as the court sees it. First, did the defendant by its action, to-wit, the purchase of these mortgages at the time it did, breach the contract and take from the plaintiff what rights he may have had under such contract? With the following principle of law as quoted in plaintiff’s brief, this court has no argument.
“ ‘He, who, by mutual contract, confers on another a right or imposes a duty, impliedly agrees not to defeat that right or make impossible the performance of that duty by any affirmative acts of his own. 12 Am Jur, § 239, p 767, note 2, citing Loehr v. Dickson, 141 Wis 332 (124 NW 293, 30 LRA NS 495).’
“But the court further believes that the above quoted principle of law is not applicable to the facts as revealed by the testimony. The testimony in this case revealed that unless the defendant purchased these contracts from the Federal National Mortgage Association, neither party would have benefited from the contract and the contract would have no longer existed, and certainly there is no rule of law which can impose an obligation upon the defendant in favor of the plaintiff simply because the defendant rather than some third party purchased the mortgages in question. Certainly the law does not require the defendant to stand idly by while some third party purchases these contracts and deprives the defendant of whatever benefit it may receive from such contracts.”
. The above seems to express defendant’s position. Defendant’s brief in referring to arguments made and authorities cited in plaintiff’s brief contains the following:
“Most clearly, it was FNMA’s decision to sell the mortgages (and that decision alone) which terminated the right of the parties to continue to service those mortgages for FNMA. * * *
“There is no question but that:
“(a) A party to a contract is obligated to use good faith. 12 Am Jur, pp 766, 767; or
“(b) A party to a contract cannot escape Ms obligations thereunder by placing himself in a position where he is unable to perform. 17 CJS, pp 778, 779, § 328; 6 RCL, § 380, p 1020; McCreery v. Green, 38 Mich 172, 181; MacLean v. Fitzsimmons, 80 Mich 336; Great Lakes & St. L. T. Co. v. Scranton Coal Co. (CCA), 239 F 603; Baumer v. Franklin County Distilling Co. (CCA), 135 F2d 384; Uproar Co. v. National Broadcasting Co. (CCA), 81 F2d 373; Halstead v. General Railway Signal Co., 51 NYS2d 372; Price v. Spielman Motor Sales Co., 261 App Div 626 (26 NYS2d 836); Vineyard v. Martin, 29 NYS2d 935; Loehr v. Dickson, 141 Wis 332 (124 NW 293, 30 LRA NS 495) ; Lovejoy v. Reed, 302 Ky 153 (193 SW2d 1013); Li Volsi Construction Co. v. Shepard, 133 Conn 133 (48 A2d 263); Public Market Company of Portland v. City of Portland, 171 Ore 522 (130 P2d 624, 138 P2d 916); Pacific Venture Corporation v. Huey, 15 Cal2d 711 (104 P2d 641); Zogarts v. Smith, 86 Cal App2d 165 (194 P2d 143).
“(c) Where the consideration for a grant of property (such as a mine, invention, copyright, et cetera) lies wholly in the payment of sums based upon the earnings of the property thus transferred, the transferee is under an implied obligation to make such property productive. Pritchard v. McLeod, 123 CCA 332 (205 F 24); In re Waterson, Berlin & Snyder Co. (CCA), 48 F2d 704; Mechanical Ice Tray Corporation v. General Motors Corporation (CCA), 144 F2d 720; Kirke La Shelle Co. v. Paul Armstrong Co., 263 NY 79 (188 NE 163); Brawley v. Crosby Research Foundation, 73 Cal App 103 (166 P2d 392).
“Such well-established rules cannot be gainsaid, but they are wholly inapplicable to the factual situation in the case at bar. Plaintiff’s argument that they are applicable is and must be predicated upon the wholly false assumption that in May, 1945, the. defendant was in a position where it could have lawfully insisted that FNMA not sell the mortgages but that it (FNMA) continue to hold them and continue to pay servicing fees under the ‘purchasing and servicing agreement.’ As lias been stated above, the defendant had no snch right to control or dictate to FNMA.”
Thus it is defendant’s position that it -was due to •circumstances beyond its control, namely FNMA’s decision to sell the mortgages, that defendant no longer received servicing fees and that, therefore, it was no longer obligated to pay plaintiff inasmuch as it was contemplated by the parties when the agreement was entered into that defendant should pay plaintiff only so long as defendant received such fees from FNMA. Regardless of whether it was shown that FNMA intended, at all' events, to sell the mortgages, either to its servicing agents or to others (and the point is in dispute), the fallacy of defendant’s position lies in the fact that under the agreement defendant was obligated do pay plaintiff regardless of whether the source from which it received servicing fees was FNMA or another, and in the further fact that termination of receipt by it of servicing fees, if it be conceded that there was such termination, was not due solely to reasons beyond its control. There were several alternatives available to defendant, namely; (1) To continue servicing the mortgages for FNMA so long as the latter did not terminate the arrangement; (2) to permit FNMA to sell the mortgages to others, if it. so desired, and await the outcome; (3) to nominate plaintiff to buy the mortgages, with no further servicing obligation upon defendant; (4) to nominate approved mortgagees suggested by plaintiff, who were willing and able to buy the mortgages and to continue the servicing arrangement with defendants; (5) to buy the mortgages itself and continue plaintiff’s fees and services. Defendant apparently selected the alternative appearing most advantageous to it. In so doing it cannot be said to have acted other than voluntarily. As indicated by the above authorities, defendant will not be permitted to voluntarily elect to pursue a course calculated to defeat the rights of plaintiff to the very payments which defendant had contracted to make to plaintiff.
Finally, defendant contends that plaintiff may not. recover on the theory that defendant had rendered it impossible for the parties to continue to service mortgages for FNMA, because plaintiff did not assert that theory in its declaration. However, plaintiff did declare on an express agreement, alleging performance thereof by itself and breach by defendant with resultant damage to plaintiff. Those allegations, standing alone, were sufficient, if proved, to support a judgment for plaintiff. If there was some justification for defendant’s breach, the burden of establishing it rested upon defendant. Defendant appears to offer in justification of its breach the alleged determination of FNMA to sell its mortgages at all events, which, if pursued, defendant claims would have resulted in termination of payment of fees to it by FNMA. As previously indicated, defendant failed to establish any justification for its breach for the reason that the agreement did not limit defendant’s liability to payment out of fees only if received from FNMA and for the further reason that the alternatives which were available to defendant preclude a holding that its failure to continue to receive servicing fees, if such failure there be, was due to causes beyond defendant’s control and not due to its own voluntary action.
Judgment reversed and cause remanded for the taking of proofs as to the amount due plaintiff to date of commencing of suit and entry of judgment accordingly. Costs of both courts to plaintiff.
Sharpe, C. J., and Bushnell, Boyles, Reid, North, Butzel, and Carr, JJ., concurred.
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Bushnell, J.
This is an appeal from the circuit court of Jackson county from a judgment for defendant in an ejectment action.
The controlling facts are as follows: In 1927, plaintiffs purchased on contract from Louis Click and wife 8 lots in the Water Street Subdivision of the city of Jackson. The described property, or a portion of it, was bounded on the easterly side by a millpond. The deed through which Click and wife obtained title to the described lots contained the following:
“Also all interest in the bed of Millpond adjacent and directly opposite the above described land, which was acquired by Moses A. McNaughton by deed from Henry A. Hayden and Wyley R. Reynolds, city of Jackson, Michigan.”
In March, 1941, plaintiffs filed a bill in the above circuit court in chancery against Click, Consumers Power Company and Pittsburgh Forgings Company for a reformation of the land contract in which they claimed they were entitled to reformation so as to include certain filled in property hereinafter de scribed. The trial court dismissed their bill of complaint as to Consumers Power Company and upon appeal we affirmed the dismissal without prejudice, see Holda v. Consumers Power Company, 302 Mich 478. In March, 1943, plaintiffs filed an amended bill of complaint. against defendant Louis Glide on the theory that through mutual mistake and misunderstanding the description of property in the land contract did not include the Glides’ interest in the bed of the pond. Upon appeal to the Supreme Court we held that there was no evidence of fraud, inequitable conduct or unjust enrichment on the part of defendant Glide and affirmed a decree dismissing plaintiff’s bill of complaint, see Holda v. Click, 312 Mich 394.
In March, 1946, plaintiffs filed a declaration against Pittsburgh Forgings Company in an action in ejectment in which they allege that in March, 1941, they were in possession and were the owners of the following described property:
“Commencing at the northwesterly corner of lot 40 Water Street Subdivision (a recorded plat in the city of Jackson, Michigan) thence easterly 214.11' along the northerly line of lot 40 and said lot line-extended easterly to the water’s edge of Grand river, said point being the place of beginning of this-description; thence westerly 163.0' along said northerly line of lot 40 extended; thence southerly 116.3' parallel with Water street; thence easterly 117.0' parallel with northerly line of lot 40 extended to the water’s edge of Grand river; and thence northerly along said water’s edge of Grand river to the place of beginning of this description
that they purchased the property on a land contract, from Glick and wife in 1927; that in November, 1945, the property was conveyed to them by warranty deed in pursuance of the terms of said land contract; and that on March 2, 1941, the defendant en tered into possession of said premises and now unlawfully withholds possession of the same from plaintiffs.
For an adequate determination of the issues involved in this case we find it necessary to examine the title of the disputed premises from the time of the United States patent. The first link in the chain of title is a patent given to Jeremiah Bennett in 1831. In 1834, title to the northwest quarter of section 2 which contains lot 40 and the disputed premises became vested in Jeremiah Marvin, who, in 1835 conveyed to William Ford, William Ford, Jr., and Jerry Ford. In 1837, William Ford, Jr., conveyed his interest in the bed of the millpond to William Ford and Jerry Ford. As a result of this deed, title to the bed of the millpond was in William Ford and Jerry Ford while title to the remainder of the property remained in the 3 Fords.
In 1839, William Ford, Jr., who again became owner of a half interest in the bed of the millpond from William Ford, and Jerry Ford mortgaged their interests in the bed of the millpond. Thereafter through assignment and foreclosure of these mortgages both undivided one-half interests in the bed of the millpond eventually came to J. D. Beers who thereby became the owner of the entire title to the bed of the millpond. Through subsequent conveyances in 1851 the title to the bed of the millpond came-to Henry A. Hayden and Wiley 11. Reynolds. On July 26, 1856, Hayden and Reynolds conveyed to Moses A. McNaughton certain specific lots and a block on the east side of the millpond. The deed contained the following language:
“Also so much of the bed of Grand river as lies westerly of a line extending southerly from the south -end of the east line of Columbus street continuing said east line of Columbus street southerly in the direction of said street across Grand river not how ever obstructing the flow of the water of said river to injury of the mill of said parties of the first part. Also so much of the bed of the millpond connected with the mills of the said parties of the first part situate in the said village lying contiguous to the shore as the said McNaughton or his assigns may desire to use with the lots plotted upon said pond by filling the same up with earth so as to make a deeper lot or a bolder shore not however in any (way) interfering with or injuring the water power of the said pond.”
At the time of this conveyance McNaughton owned the shoreland on the west side of the millpond from which lot 40 of Water Street Subdivision eventually evolved. In 1892, Hayden and Reynolds by separate conveyances conveyed the bed of the millpond to George Holton and Andrew J. Weatherwáx. These deeds contained the following:
“Also excepting all rights which were conveyed by the said Wiley R. Reynolds, party of the first part, and the other joint owner to Moses A. McNaughton by a deed bearing date July 26, 1856, and recorded in the office of said register of deeds in liber 38 of deeds, page 180, whatever said rights may be, whether to lands covered by the millpond or Grand river, or occupied by Liberty street.”
The disputed premises in the instant case are a part of the bed of the old millpond and lie on the-westerly side of the Grand river. The premises lie-adjacent to and contiguous to lot 40 of the Water-Street Subdivision, which lot is now owned by plaintiffs by virtue of their deed from Glicks.
The record shows that after taking possession of lot 40, plaintiffs lowered the grade of the lot, pushing the earth back and filling in the contiguous submerged bed of the millpond to the east of their lot and continued to do so until 1941 when they were-dispossessed by defendant company.
It is the claim of plaintiffs that they have title to lot 40 and to such part of the millpond as they or their assigns may desire to fill in to make a deeper lot without injuring water power; that by virtue of the McNaughton deed and prior deeds to McNaughton of which they are subsequent assignees submerged contiguous land passed by conveyance of the abutting lot in the absence of express reservation;, and that if any prior severance of riparian rights existed, the intent and legal effect of the McNaughton and Reynolds deed was to establish all rights of riparian ownership to contiguous submerged land in abutting lot owners.
It is the position of defendant company that prior to July 26, 1856, Moses McNaughton had absolutely no right, title or interest in any of the land in the bed of the millpond; that he had no riparian rights as such rights had been previously severed and title to the bed of the millpond was in Hayden and Reynolds; that McNaughton owned only to the edge of the millpond and any grant that he might make could carry no more right or interest than that.
The trial court entered a judgment in favor of defendant and in an exhaustive opinion stated:
“We apprehend that the plaintiffs, if they are entitled to recover at all, must satisfy the court by the preponderance of the evidence that they have title to the disputed premises under one or more theories; namely, (1) by adverse possession, (2) by easements, (3) by specific grant, (4) by appurtenance, (5) by riparian rights. By stipulation and statement in open court, of record, plaintiffs claim no rights in the disputed premises by virtue of adverse possession; so this is eliminated from further consideration by the court. Despite the claim in plaintiffs’ declaration, in their proofs, and in their brief, that they hold title to the disputed premises by virtue of specific grant, the court is unable to agree with this contention. Nowhere in the case is there any evidence of any specific grant of the disputed premises to the plaintiffs. Their only specific grant is lot 40 of Water Street Subdivision and they have been denied by both the trial and the appellate courts the right to have their land contract or deed from Glick reformed to include any rights, such as they may be, as set forth in the so-called McNaughton deed. The theory of title by easement must be eliminated from further consideration, since the plaintiffs claim title in fee; and, furthermore, ejectment will not lie to recover easements. See McMorran Milling Co. v. Pere Marquette Railway Company, 210 Mich 381; Hasselbring v. Koepke, 263 Mich 466 (93 ALR 1170). In any event, plaintiffs themselves make no claim to title here by easement. The theory of title by appurtenance must also be rejected by the court, since land cannot be appurtenant to land. See 16 Am Jur, p 605. Gates, Michigan Real Property, § 574; 1 Thompson, Real Property (Perm ed), p 535. Upon the trial of this cause, the court sought to have plaintiffs’ counsel exactly state the theory upon which his clients claimed title to the disputed premises, but, aside from the concession that no claim was made of title by adverse possession, plaintiffs did not succeed in clarifying the issues in these respects. Nevertheless, by the process of elimination, this court is forced to the conclusion that if the plaintiffs have any claim of title here, upon the facts and the law applicable thereto, it must necessarily rest upon the theory of riparian rights. * * *
“Nowhere in a rather extensive research into the question has this court been able to find, either in texts or in case opinions, any statement of law, directly or indirectly, which would indicate that a right to fill is an incident of riparian ownership. On the contrary, all the law examined on the subject indicates directly the contrary to be true. In the instant case, as hereinabove pointed out, Hayden and Reynolds owned title to' the bed of the millpond by conveyances in evidence in this case. Their rights of flowage were, therefore, not obtained by prescription, by user, qr by contract, bnt by outright ownership of the bed of the pond. Such ownership divested the shore-land owners of their otherwise existing-riparian rights, McNaughton, at the time of the deed from Hayden and Reynolds, July 26, 1856,, therefore owned no riparian rights in the bed of the millpond. Even if-he had owned riparian rights,, as hereinabove pointed out, it is extremely doubtful, to say the least, if such riparian rights alone could be claimed to extend to the right to fill in the bed of the pond ‘so as to make a deeper lot or a bolder shore.’
“It is the plaintiffs’ contention, as pointed out •above, that the so-called McNaughton deed from Hayden and Reynolds, in 1856, re-established and re-created .riparian rights in McNaughton. This court cannot place any such interpretation upon the McNaughton deed. Leaving aside consideration of what was in contemplation of the parties, Hayden, Reynolds, and McNaughton, in 1856, some 91 years ago — and this court cannot possibly speculate on that subject — it seems clear that the effect of the McNaughton deed was to give to McNaughton a right in the nature of an easement from Hayden and Reynolds to fill lots abutted on the millpond by McNaughton over ‘so much of the bed of the millpond connected with the mills of the said parties of the first part * * * so as to make a deeper lot or a bolder shore, not, however, in any way interfering with or injuring the water power of said pond.’ This right in the nature of an easement was applicable to lots owned by McNaughton on the east side of the millpond. Lot 40 is on the west side of the millpond. From the evidence there is nothing for the court to determine as to whether or not McNaughton ever exercised this right. Furthermore, from the evidence, there is nothing for the court to conclude as to just where on the pond ‘the mills of said parties of first part’ were located; and the right by the deed was confined to that portion of the bed of the mill pond described as ‘so much of the bed of the millpond connected with the mills of said parties of the first part.’
“In the opinion of the court, this so-called McNaughton deed was not a re-creation or a re-establishment of riparian rights in shore owners, such as McNaughton, and was not intended to be. On the contrary, it was a deed conveying a right in the nature of an easement to fill certain lots by earth so as to make ‘a deeper lot or a bolder shore line,’ which is not an incident of riparian ownership, and which had to be conveyed in the manner it was in order to confer any such right upon McNaughton. The plaintiffs here do not have any such rights conveyed them either; by specific grant or otherwise. * * *
“Aside from all the other difficulties involved in the issues here confronting this court in sustaining plaintiffs’ claims, as above pointed out, is the difficulty of positively identifying the claimed land. The water power has long since ceased to be used, the dam is no longer in existence, the old natural river bed of the Grand river has been changed and straightened, and the bed of the present stream is now conceded to lie somewhat easterly from its old natural water course. In addition, the shore line of the old millpond cannot now definitely be established, since the millpond, as such, has ceased to exist in this area. Under such circumstances, we apprehend that it would be impossible for this court to identify and to describe with any degree of certainty the land to the rear of lot 40, which was once the bed of the old millpond, even if the plaintiffs had any riparian rights therein. To be sure, the court has been furnished with a description of the disputed land, but the court can find no evidence in the case that shows where the old river bed was, where the center line or thread of the stream was, and where the shore line of the old millpond existed as of 1856. Possibly this situation alone should be sufficient for the court to deny the plaintiffs’ relief they seek, under the well-recognized principles of law applicable to the recovery of specific lands in ejectment actions.”
The principal issue in the case at bar grows out of certain phraseology contained in the so-called “MeNaughton deed” dated July 26, 1856, wherein Hayden and Reynolds conveyed to MeNaughton by warranty deed certain specific lots and block on the east side of the millpond.
The following language is found in the deed:
“Also so much of the bed of the millpond connected with the mills of the said parties of the first part situate in the said village lying contiguous to the shore as the said MeNaughton or his assigns may desire to use with the lots plotted upon said pond by filling the same up with earth so as to make a deeper lot or a bolder shore not however in any (way) interfering with or injuring the water power of the said pond.”
The trial court concluded that the above “right to fill” clause referred only to the east side of the millpond since the deeds exchanged by Hayden and Reynolds and MeNaughton in July, 1856, dealt with specific lots and a block on the east side of the pond. In our review of the record with reference to the date of the exchange of the deed as above mentioned, we come to the same conclusion as did the trial court. We also conclude that plaintiffs do not have a specific grant to the described land nor does any such specific grant appear in plaintiffs’ chain of title. The language of the “right to fill” clause does not refer to land on the west side of the millpond.
In construing deeds it is necessary to interpret them in the light of the facts known to the parties at the time the deeds are executed. In the record before us it is impossible to identify the land or determine what was intended by the so-called “right to fill” clause except that it referred to land on the east side of the pond.
We are not in accord with plaintiffs’ claim that the legal effect of the McNaughton and Reynolds deed of 1856 was to establish all rights of riparian ownership to contiguous submerged land in abutting landowners. If plaintiffs are to prevail upon this theory they must show that Hayden and Reynolds intended to and did convey the bed of the millpond to McNaughton and reserved only the flowage rights. We note that the deed to McNaughton contains no reference to riparian rights, nor does it make any attempt to convey the bed of the millpond. An indication that no such conveyance was intended lies in the fact that subsequent grantees of Hayden and Reynolds continued to convey the bed of the millpond and did not merely assign their flowage privileges.
It is also urged that the court was in error in denying plaintiffs the right to prove that they filled in the pond bed gradually from 1927 to 1941. This proof could only be offered on the theory of adverse possession and since plaintiffs did not have possession of the disputed land a sufficient length of time to claim title by adverse possession it was not error to reject the offered testimony.
From a consideration of all the facts and circumstances we are of the opinion that plaintiffs have not sustained the proofs necessary to establish an action in ejectment. The judgment of the trial court is affirmed, with costs to defendant.
Boyles, Reed, North, Dethmers, Butzel, and Carr, JJ., concurred.
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Sharpe, J.
Euss Dawson, a copartnership, composed of the members of the Euss Dawson family, operated an automobile sales and service agency con sisting of 2 places of business, one located at 16231 Woodward- avenue, and the other at 4400 Cass avenue, both in the Detroit metropolitan area, but separated from each other by a distance of about 2 or 3 miles. This employer had been subject to the Michigan employment security act for a sufficient length of time to entitle it to an adjusted contribution rate for the year 1946.
On April 1, 1946, the Russ Dawson partnership sold, for $33,000, to a newly-formed partnership, which is not a party to these proceedings, all of its assets located at the Cass avenue branch, including the lessee’s interest in an unexpired lease covering the premises at Cass avenue.-
The sale of the Cass avenue branch included only the physical assets at that address plus the unexpired portion of a lease covering the premises there, but it did not cover good will, the name of Russ Dawson, or an assignment of the Ford Motor Company automobile agency franchise outstanding in the partnership name. These intangible assets were transferred to the corporation on May 1, 1946.
On May 1,1946, the Russ Dawson partnership sold, for $210,000, to Russ Dawson, Inc., a newly-formed Michigan corporation, all of the remaining assets of the partnership which consisted of those assets in the Woodward avenue place of business. Included in this transaction was an assignment by the partnership to the corporation of the automobile' agency franchise. The stockholders of the- corporation were the same individuals who were members of the predecessor partnership.
The aggregate wages paid by the Russ Dawson partnership for the' period from April 1, 1945, through March 31, 1946, at the Woodward avenue place of business represented approximately 75%, and at the Cass avenue place of business approx imately 25% of the total amount of wages paid during that period by the partnership.
In July, 1946, the Michigan unemployment compensation commission issued a determination combining the experience records of Buss Dawson, Inc., and the Buss Dawson partnership under the provisions of section 22 of the Michigan unemployment compensation act, PA 1936 (Ex Sess), No 1, as amended by PA 1943, No 246 (Stat Ann 1946 Cum Supp § 17.524 [62]). On October 3, 1946, the commission issued a redetermination declaring the previous determination void and held that the experience record of the corporation could not be combined with that of the predecessor partnership. On May 20, 1947, the commission issued a notice of assessment to Buss Dawson, Inc., for additional contributions on the basis of a rate of 3% as a result of the decision not to combine the experience record of the corporation and the predecessor partnership. The matter was appealed to the appeal board, which held that the experience records could not be combined. The matter was then taken for review by writ of certiorari to the circuit court of Wayne County. On October 13, 1950, the circuit court reversed the decision of the appeal board, and held that the experience records could be combined.
The trial court in an opinion stated:
“The present litigation arises out of the claim of that corporation to the benefit of the experience records of the former partnership and the consequent maintenance of the contribution level enjoyed by the partnership. The position of the commission is that the corporation must start its contributions at the maximum level of 3%, as if it were just starting in business. This involves a construction of section 22 of the statute. There is no question (and it is conceded) that the corporation is the successor, within the meaning of the act, of the partnership, and that it has accepted responsibility for any unpaid contributions of the partnership as of May 1, 1946.
“The immediate question involves an interpretation of subsection (c) of section 22, reading as follows :
“ ‘In the interpretation of this section, substantially all of the employing enterprises of a predecessor employer shall be deemed to be continued solely through a single employer as successor thereto if the commission finds that the successor has acquired business establishments or properties, or other trade or assets, the operation of which during the last 4 completed calendar quarters involved more than 95% of the aggregate wages payable for employment by the predecessor employer during such period.’ * # *
“The proper question to be determined is the percentage of wages arising from the operation of ‘business establishments or properties, or other trade or assets,’ wherever located. It is entirely conceivable that the operation of only 50% of the property or assets might involve 75% of the wages, and conversely, that the operation of 75% of the property or assets might, involve only 50% of the wages. The fact in the instant case is, that the operation of the .Ford agency franchise coupled, of course, with the physical properties necessary to implement it, involved all the wages under the partnership, regardless of the geographical location of the buildings where the various employees worked. It is apparent to the court that the predominant and indispensable asset and property which produced all the wages paid to the plaintiff’s employees when it was a partnership, was its agency contract with the Ford Motor Company. It is quite true that this alone would produce no wages, and that physical assets such as buildings and machinery were necessary to give it value. It is equally true that these physical assets without the franchise would have produced only a small fraction of the wages which were paid. This lucrative and wage-producing asset was retained by the part nership after the separation of Lare and West on April 1st, and passed on directly to the corporation on May 1st. It is apparent, then, that the successor corporation on May 1st acquired properties and assets, the operation of which during the preceding year involved more than 95% (in fact, 100%) of the aggregate wages paid by the partnership.
“It follows, therefore, that the successor corporation, the plaintiff in this case, succeeded to all of the benefits of the experience records of its predecessor, the partnership, and that the decision of the appeal board of the unemployment compensation commission must be reversed. A judgment in accordance herewith may be entered.”
Defendant appeals and urges that the trial court was in error in holding that the experience records of the corporation and the partnership could be combined in order to determine a rate for the corporation.
The statute provides that under certain conditions a successor employer shall be entitled to a transfer of the experience record of its predecessor employer. The provisions for the transfer of an experience record are contained in section 22 of the act, PA 1936 (Ex Sess), No 1, § 22, subd (a) (1), as amended by PA 1943, No 246 (Stat Ann 1946 Cum Supp § 17.524 [a]) reads as follows:
“(1) That an employer has acquired the organization, trade or business, or substantially all the assets thereof, of a predecessor employer which at the time of such acquisition was an employer subject to this act, and immediately after such acquisition substantially all the employing enterprises of such predecessor employer are continued solely through the employer which has acquired such organization, trade or business, and has accepted responsibility for any unpaid contribution due and payable at the time of such acquisition; or”
The statute also provides in section 22, subd (c) :
“(c) In the interpretation of this section, substantially all of the employing enterprises of a predecessor employer shall be deemed to be continued solely through a single employer as successor thereto if the commission finds that the successor has acquired business establishments or properties, or other trade or assets, the operation of which during the last 4 completed calendar quarters involved more than 95 per cent of the aggregate wages payable for employment by the predecessor employer during such period.”
The above section is a mandate from the legislature providing a basis for determining when a successor employer is entitled to the experience records of its predecessor. In the case at bar the stipulated facts show:
“The aggregate wages paid by the Russ Dawson copartnership for the period from April 1, 1945, through March 31,1946, was $294,411.87, these wages being paid for services rendered at both the principal place of business and the branch establishment at Cáss avenue. Of this amount $219,985.39 was paid during that period for employment in the operation of the Woodward avenue place of business, which amount represents a fraction more [less?] than 75% of the total wages paid by the partnership during that period. The balance represents wages for employment in the Cass avenue branch.”
Under the above-stipulated facts the corporation, in taking over the assets of the Woodward avenue place of business, took over a business that paid only 75% of the total wages paid by the partnership during the preceding year, and under the above sub division (c) the corporation was not entitled to the experience record of the partnership.
The trial court in determining that the corporation was entitled to the experience record of the partnership took into consideration that the corporation took over the agency contract with the Ford Motor Company, and held that the value of this contract as an asset enhanced the assets of the Woodward avenue business sufficient to comply with the statutory requirement.
The record is void of any evidence as to the value of the Ford Motor Company contract. The trial court was in error in placing a value upon an asset contrary to the stipulated facts as contained in the record. It follows that the plaintiff has not made a sufficient showing to enable it to claim the benefit of the experience record of the former partnership.The judgment is reversed, but without costs as a public question is involved.
North, C. J., and Dethmers, Btjtzel, Carr, Bushnell, Boyles, and Reid, JJ., concurred.
This section was amended by PA 1947, No 360 (CL 1948, § 421.-22), but the quoted subdivisions of the section were not altered.— Reporter. | [
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Caer, J.
Plaintiff brought this suit in circuit court .to recover damages for injuries to his person and his property suffered in a traffic accident. It was his claim, as set forth in his declaration, that defendant Harold Borr and defendant Jack Rowe were guilty of concurring acts of negligence resulting in the automobile of Rowe striking and injuring plaintiff and Ms vehicle. Said accident happened in the early morning hours of August 28, 1949. Plaintiff was at the time driving on US-16 in a westerly direction about 5 miles east of Cascade, in Kent county. ' Defendant Harold Borr was operating an automobile immediately preceding that of plaintiff, which was owned by himself and the defendant Pauline Borr. A short distance ahead of the ear of defendants Borr was a truck or tractor to which was attached a trailer.
Plaintiff alleged in his declaration that defendant Harold Borr while ascending a hill undertook to pass the truck and trailer, and that in doing so he drove across the center line of the road so that his automobile was entirely on the south side, that is, in the eastbound lane of traffic. The pavement at such point was 20 feet in width. It was plaintiff’s claim that at the time an automobile driven by defendant Rowe came over the crest of the hill at a high rate of speed, that Rowe was blinded by the lights from Borr’s vehicle, which was a short distance ahead of him and blocking the south side of the pavement, that as a result defendant Rowe lost control of his automobile, struck the tractor or trailer, or both, and then crashed into the car driven by plaintiff. Defendant Borr had in the meantime returned to the north side of the pavement ahead of plaintiff’s Vehicle. As a result of the impact plaintiff claimed that he sustained severe personal injuries, that his automobile was damaged beyond repair, and that he also sustained other property .loss.
The case was tried before a jury in circuit court, plaintiff asserting liability on the part of defendants Mr. and Mrs. Borr as well as defendant Rowe. At the conclusion of his proofs counsel for defendants Borr moved for a directed verdict in their favor, such motion being based principally on the claim that no negligence on the part of defendant Harold' Borr had been shown. The motion was denied. Following the introduction of defendants’ proofs a motion for directed verdict was made on behalf of Mrs. Borr, and was granted on the ground that she was not liable for possible negligence on the part of her husband and that such liability could not be predicated on her part ownership of the car. A motion was also submitted and granted for a directed verdict in favor of defendant Harold Borr. The case was then submitted to the jury against defendant Rowe alone, the jury being told that Mr. and Mrs. Borr were not liable. A disagreement resulted. Plaintiff’s motion for a new trial against defendants Borr was denied, and he has appealed.
The principal question at issue in .the case is whether the trial court was correct in directing a verdict as to defendant Harold Borr. A verdict having been directed against plaintiff, the testimony and the legitimate inferences therefrom must be construed as favorably to him as is reasonably possible. Dasovich v. Longacre, 324 Mich 62; Vukich v. City of Detroit, 325 Mich 644. It was his claim on the trial and testimony was offered tending to show that defendant Borr pulled entirely.out of the lane of westbound traffic and was on the south side of the road as Rowe’s automobile came oyer the crest of the hill up which the tractor and trailer were proceeding, that the Borr car occupied the .eastbound traffic lane, and'that the lights wer.e of such intensity as to blind defendant Rowe, causing him to lose control of his vehicle. On behalf of plaintiff it was insisted that Borr and Rowe were guilty of acts of negligence that together resulted in the collision of Rowe’s car with that of plaintiff, and that in any event the negligence of defendant Borr was a proximate cause of the accident.
As a witness in his own behalf, plaintiff testified in part as follows:
“Q. You say you suddenly saw Mr. Borr.’s car get on the left side of the lane. You mean that he pulled over on the left lane of the highway?
“A. The left lane of the highway. That would be the southem part of the highway, the highway running west.
“Q. Was lie completely over on the left lane of the highway?
“A. He was completely over and attempted to pass the truck.
“Q. You mean he had pulled up alongside the truck when you say he attempted to pass?
“A. He started to pull up next to it. I didn’t say he was way toward the front of the truck. He was just at the rear half of the truck there attempting to pass the truck.”
On cross-examination he gave the following testimony:
“Q. What you saw Mr. Borr do ahead of you was swing out and swing right back?
“A. No, he was completely out; he put on his brakes and came back.
“Q. Now, Mr. Borr’s car'was following behind this truck in a perfectly normal way up to the time it turned out, wasn’t it?
“A. He wasn’t — he was trying to pass it. I mean —Mr. Borr’s car wasn’t following behind this truck in a perfectly' normal way up to the time it turned out — he was trying to pass it. * * * When he turned out I wasn’t close enough to see any car in front- of him going the other way, my vision was completely blocked by Mr. Borr’s car and the truck. I'didn’t see any headlights coming when he turned out. Reflection is all I saw. I saw the reflection about the same time that he turned out, I would say.
‘‘Q. And just as soon as you saw the reflection of the lights, he swung back-on his-own side of the road, didn’t he?..
“A. No. That is what alarmed us.
“Q. How far did he travel when you could see those lights on the opposite side of the road coming the other direction with this car there; how far did he travel?
“A. I don’t know how many feet he traveled. I would say that die -traveled a quarter of the distance of the semi-trailer on the other side of the road. Possibly 8 or 10 feet. The truck was moving all of the time.”
Plaintiff’s witness Ernest Van Dam, who was a passenger in plaintiff’s car, in testifying to his observations immediately preceding the impact, said:
“I was looking ahead when he started to pass. I didn’t see a vehicle coming from the other direction at that time. All I saw was the reflection of lights over the crest of the hill. They were shining up in the air. It was raining that, evening. I didn’t see the headlights; I saw the reflection. I wouldn’t know where the car coming from the opposite direction was when I saw the reflection. Before 'Mr. Borr started to pass I could have seen down the left-hand side if I had looked but I didn’t look. ■ The first time I looked was after he was out there, and after he was out there alongside the truck, all.I could see was some reflection of lights that were shining-up in the air down the road some distance. • I did not-hear a crash immediately afterwards. • It was a matter of seconds. I can-’t say how many seconds. A car traveling 60 miles an hour-goes over 80 feet a second. I can’t determine how- fast this car was traveling. We probably traveled-200 or 300 feet possibly during that interval, -and we- traveled that" 200 or 300 feet while Mr. Bprr’s..-cár'wg,s on the left-hand side of the highway with these- lights reflecting up in the air in front Of us.” "
The witness further stated, on‘re-cross-examination:
“The last time I saw the Borr car and the trailer' before the impact was when they were right, side; by side completely blocking the entire highway and. the only opening was the shoulder between' the guardrail and the cement and at that-time I could, see just ;the reflection of headlights ;up in the .air of this car coming towards me. You'would just seethe beams, like somebody' shining flashlight. 'We didn’t see them over the Oldsmobile or anything. I.do not know whether the Oldsmobile had its top up or down, I don’t remember. The hill where this accident happened is upgrade for quite a ways and the hill is high enough so that it would be over the top of a regular car at the base of this hill. The Oldsmobile started to pass on the hill where the yellow marks were. The yellow marks were on the north side of the center line. I looked that night. I possibly could be mistaken but I doubt it. I have never gone back since to see if there were yellow marks on that highway;”
Defendant Rowe was called by plaintiff for cross-examination. The following excerpts from his testimony indicate his claim as to how the accident happened and defendant Borr’s connection therewith.
“When I reachéd the top of the hill I blinked my. lights and *the truck blinked its lights, and right afterwards there was another set of lights on the opposite side of the road from the truck. That other set of lights was parallel to the truck and was on the south portion of the highway on which I was traveling. I was driving east on the south portion of the highway and that other set of lights was on the south portion. At that time I was driving at least 50 miles an hour and I was just starting to go down the hill. When I first saw this other set of lights on my side of the highway I blinked my lights just as fast as I could, thinking that the other car was going back in. I thought for a second he had just passed.
“Q. Just a moment, let me ask you this question before you go on. How far away from'you was this truck and the other set of lights, when you first saw it?
“A. I would say when I first met the truck, I was approximately 500 feet.
“Q. You saw the truck when you were 500 feet away, is that right?
“A. Or possibly a little farther;
“Q. And the truck was driving on what portion of the highway?
“A. On his own side.
“Q. That would he the north portion, is that right?
“A. North side, correct.
“Q. And how far away from you was the second set of lights when you first saw them?
“A. I couldn’t determine the distance because I was staring into the 4 lights. And when I blinked my lights, why, there was no response from the car on my side of the lane.”
After testifying to striking the truck and attempting to pull off the highway on the right side, the witness proceeded as follows:
“Q. And at that time that you were pulling off the highway, were the headlights of this other automobile still shining in your eyes?
“A. As near as I can recall, they were because I had been blinded, and it looked like they were still there. * * *
“When I first got over the hill and saw the track headlights on the north side of the road and the other set of headlights on the south side of the road I was blinded by the bright lights. I didn’t strike the rear wheel of the tractor until I put my brake on and started to swerve. Then I hit the rear wheels of the truck-tractor as near as I can recall. Then I swerved off the road.
“Q. And as you cut back on to the road, you were still blinded by the same set of bright lights, is that right?
“A. I was blinded by lights.
“Q. And you struck the rear end of the truck at this time, isn’t that right?
“A. I don’t know what. I struck something; I don’t know what it was.
“Q. Well, you remember striking somewhere?
“A. Yes.
“Q. And. you were cutting back on the road, you were still blinded by bright lights?
“A. That’s correct.
- “Q. And as you swerved off the road, you were blinded by bright lights?
“A. That’s right.”
As a witness in his own behalf, defendant Borr testified that at the time he turned out to pass the tractor and trailer he was driving “about 50 or 60 miles an hour” and that he was not aware that the vehicle that he was seeking to pass consisted of a tractor' and trailer until he “got alongside.” It was his claim that he returned to the westbound lane- of traffic when he saw the reflection of headlights coming over the hill. He admitted also that his automobile was entirely across the center . line • of the pavement, on the eastbound lane of traffic.
Without referring specifically to other proofs, we think it must be said that the testimony offered on behalf of plaintiff was of such character as to raise an issue of fact as to the negligence of defendant Borr. He doubtless realized that he was operating-his automobile on a 2-lane highway, Before undertaking to pass the vehicle ahead of him, he whs charged with the duty of making reasonable observations to determine if he could do so in safety. According to plaintiff’s proofs, at the time defendant left his position in the westbound lane of -traffic aiid drove ahead beside the trailer, .the reflections from the headlights of Rowe’s automobile were visible over the crest of the hill. If the witnesses for plaintiff could see, such reflections,' obviously defendant might have done likewise had he made careful obsei^ations. ' The exercise of due'1 care should , have prompted also a determination as to the approximate length'-of'-the vehicle that he'was undertaking to pass. The testimony of defendant Rowe indicates- that the headlights of the Borr car were directly before him on the south part of the pavement, and that they were of such intensity as to blind him. If Rowe’s testimony is correct, this caused him to lose control of his car and resulted in the accident.
An examination of the record brings us to the conclusion that it cannot be said there were no proofs in plaintiff’s behalf from which the jury might have found that defendant Borr was guilty of the negligence charged against him, and that such negligence was a proximate cause of the injuries and property damage suffered by plaintiff. Construing the testimony in accordance with the rule above stated, we think that the determination of the question should have been left to the jury. It may not be said as a matter of law that the physical facts were such as to destroy any probative value of the testimony tending to support plaintiff’s claims. Inconsisttencies or contradictory statements in the testimony of witnesses do not prevent the application of the rule as to the interpretation of the testimony by the court in passing on the correctness of a directed verdict. Yampolsky v. Smith, 320 Mich 647. The court was in error in directing a verdict as to the defendant Harold'Borr.
The facts in the case are somewhat analogous to .those involved in Braendle v. Drum, 254 Mich 372. In that case a bus operated for one of the defendants undertook to pass an automobile, about 9 o’clock in the evening, on US-16 a few miles west of Farmington. The night was dark and rainy. The pavement at the place where such passing was attempted was approximately 18 or 20 feet in width. The bus drove up beside the automobile that the bus driver was seeking to pass and at the same time an automobile driven by another defendant in the case approached from the opposite direction. Said driver claimed that he undertook to stop when he saw the bus in front of him, that his car skidded, and that as a result he came in contact with the automobile in which the plaintiffs were riding. The trial court directed a verdict in favor of the operator of the bus line, on the ground that no negligence on the part of his driver had been shown. In reversing the judgment entered on the directed verdict, it was said:
“The question presented on the motion to direct a verdict was whether, under the circumstances, it was negligence on the part of the driver of the bus to turn to the left and attempt to pass the Yoght car, and, if so, whether such negligence was the proximate cause of the collision and the injuries to the plaintiffs resulting therefrom.
“Had the driver of the bus been watchful, as it was his duty to be, in view of the darkness and the condition of the pavement at the time, due to the rain Avhich was falling, he would necessarily have seen the approach of the car driven by Yeip Avhen he turned out to pass the Voght car. By doing so ho occupied that part of the pavement which Yeip would necessarily travel on in passing the 3 cars. He could not have planned on taking a position behind the Braendle car as the distance between it and the Yoght car was only about 25 feet. These facts being considered, the jury might well have found that the driver was guilty of negligence in turning his bus to the left at the time he did.
“In our opinion they might also have found that his negligence in this respect Avas the proximate cause of the collision. Tozer v. Railroad Co., 195 Mich 662, 666; Jaworski v. Detroit Edison Co., 210 Mich 317, 320; Butrich v. Snyder, 236 Mich 300, 308.”
In Fitzcharles v. Mayer, 284 Mich 122 (3 NCCA NS 565), a judgment for plaintiff under similar facts was upheld. There the question at issue was the liability of the owners and the driver of a taxicab. The driver, while operating such vehicle in the usual course of business, made a U-turn ahead of an auto mobile driven by another defendant in the ease, which was approaching at a rate of approximately 60 miles per hour. The driver thereof, in attempting to avoid striking the taxicab, swerved his car to the left and collided with plaintiff’s vehicle which was approaching from the opposite direction. It was held that-under the circumstances whether there was negligence on the part of the taxicab driver was an issue for the jury. The court pointed out that there may be more than one proximate cause of an accident. Under the facts in the case and prior decisions the Court declined to say that there was any error of law in holding the owners and driver of the taxicab jointly liable with the owner of the vehicle that actually struck and injured the plaintiff.
This brings us to a consideration of the question whether the record indicates any proper basis for liability on the part of Mrs. Borr. No claim is made that she was in any way responsible for the manner in which her husband operated his automobile on the occasion in question. The claim of liability on her part is based on provisions of CL 1948, § 256.29 (Stat Ann § 9.1446) in force at the time of the accident involved in this case. Said section .reads in part as follows:
“The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle whether such negligence consists of a violation of the provisions of the statutes of the State or in the failure to observe such ordinary care in such operation as the rules of the common law require. The owner shall not be liable, however, unless said motor vehicle is being driven with his or her express or implied consent or knowledge. It shall be presumed that such motor vehicle is being driven with the knowledge and consent of the owner if it is driven at the’time of said injury by his or her father, mother, brother, sister, son, daughter, or other immediate member of the family.”
The provisions quoted are now contained in the present motor vehicle code, PA 1949, No 300, § 401 (CL 1948, § 257.401 [Stat Ann 1952 Rev § 9.2101]). The presumption created by the statute is not, as a matter of law, overcome by the proofs in the case. We find no testimony tending to throw light on the question as to the manner of exercise of rights of ownership and control by defendants Borr with reference to the operation of their automobile. There is no showing of any fact or facts inconsistent with the statutory presumption of knowledge and consent by Mrs. Borr to its use by her husband on the occasion in question, nor to establish that he was entitled to such use without regard to her knowledge and consent.' The trial judge, in granting the motion, apparently relied on Mittelstadt v. Kelly, 202 Mich 524. In that case proofs were introduced with reference to the use and ownership of an automobile claimed to belong to the defendants, father and son. The 'former in fact denied any interest in the vehicle which the son used when and as he pleased. There is no comparable showing in the instant case. Under the record here we are impressed that the decision in Moore v. Noorthoek, 280 Mich 431, in which it was • held that a married woman was liable for the negligent operation of an automobile by her husband, the .title of the vehicle having been issued in their joint names, is directly in point. See, also, Buchel v. Williams, 273 Mich 132. The primary question at is- ■ sue is the interpretation of the statutory provisions "above quoted. Gn the record before us it may not be said that, as a matter of law, there is no liability on the part of Mrs. Borr. We are constrained to hold, therefore, that the trial court was in error in .‘directing a verdict in her favor.
The judgment entered by the trial court in favor of defendants Harold and Pauline Borr is reversed, ¡and the case remanded with directions to vacate such ¡judgment and to grant a new trial. Plaintiff may 'have costs.
North, C. J., and Dethmebs, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Sharpe, J.
Tbis is a suit in chancery to determine tbe respective rights of vendors and vendees on land contracts in condemnation awards. Five cases were consolidated and tried as one case.
Tbe material facts are not in dispute. Tbe Michigan Investment Company, also identified as tbe Lambrecht-Kelly Company, Claud B. Tromley, and Margaret Tromley, bis wife, hereinafter referred to as vendors, subdivided a piece of property known as Starr Acres subdivision. Tbe negative reciprocal easements in lots hereinafter listed were condemned in proceedings growing out of tbe widening of Woodward avenue and tbe relocation of tbe Grand Trunk Western Bailroad Company’s right of way. Tbe determination of necessity for tbe taking of tbe property was made October 14, 1929, but tbe commissioners’ report of awards and tbe probate court order confirming them were not made until February, 1935.
Tbe history of tbe property, material to tbe issue involved, is as follows:
“Lots 342, 343, 257 (357) and 258 (358), sold on land contract to defendants, Mibai Stragea and Kate Stragea, bis wife, March 5, 1923. Purchase price $4,950, payable in 5 years. Judgment for possession before circuit 'court commissioner September 28, 1934. Principal and interest found due, $2,795.16. No redemption. Writ of restitution issued April 16, 1935. Condemnation award, $1,100.50. Balance due on contract, October 14, 1929, $2,738.61. Balance due February 19, 1935, $2,437.40.
“Lots 367 and 368 sold on land contract to defendants, George Buttan and Clara Buttan, his wife, July 21, 1925. Purchase price $2,840, payable in 5 years. Judgment for possession before circuit court commissioner April 12,1939. Principal and interest found due, $1,878.83. No redemption. Writ of restitution issued 7/18/39. Condemnation award — lot 367, $765; lot 368, $807.50 — totaling $1,572.50. Balance due October 14, 1929, $1,731.47. Balance due February 19', 1935, $1,366.13.
“Lot 261 sold on option land contract to defendant, Jean Quick Kerr, May 26,1926. Contract given October 6, 1927. Purchase price, $2,210, payable in 5 years. Judgment for possession before circuit court commissioner September 28, 1934. Principal and interest found due $1,648.03. No redemption. Writ of restitution issued April 16, 1935. Condemnation award, $391. Balance due October 14, 1929, $1,767.24. Balance due February 2, 1935, $1,538.31.
“Lots 256, 257 and 258, sold on land contract to defendants, James Gibson and Martha Irene Gibson, his wife, December 12,1925. Purchase price, $3,650, payable in five years. Judgment for possession before circuit court commissioner August 24, 1934. Principal and interest found due, $2,381.11. No redemption. Writ of restitution issued November 24, 1934. Condemnation award: Lot 256, $55; 257, $65; 258, $352 — totaling $472. Balance due October 14, 1929, $2,205.39. Balance due February 19, 1935, $1,958.42.
“Lot 297 sold on land contract to defendants, Gibson and wife, November 11, 1925. Purchase price, $775, payable in 5 years. Judgment for possession before circuit court commissioner. August 24,1934. Principal and interest found due, $384.44. No redemption. Writ of restitution issued November 24, 1934. Condemnation award, $95. Balance due Oc tober 14, 1929, $1,767.24. Balance dne February 19, 1935, $1,538.31.
“Lots 324 and 325 sold on separate land contracts to Andrew L. Speed, both contracts dated May 11, 1925, and each for the sum of $775. Last payment on lot 324 February 11, 1932. Balance of principal $245.25 and interest from said date. Last payment on lot 325 February 11, 1932. Balance of principal $274.99 and interest from said date. No foreclosure on either land contract. Condemnation awards: Lot 324, $203.05; lot 325, $200, totaling $403.05. Balance due on lot 324, October 14, 1929', $390.18. Balance due on February 19, 1935, $245.25. Balance due on lot 325, October 14, 1929, $378. Balance due February 19, 1935, $272.99.”
On May 12, 1938, the State highway commissioner filed a bill of interpleader in the circuit court of Oakland county, in chancery, for a determination of the party or parties to whom the awards for lots 256, 257, 258, and 297 should be paid. The vendors filed an answer and cross bill of complaint in which they ask that equitable liens be decreed on the whole amount of the awards in favor of the vendors. Defendants James Gibson, Martha Irene Gibson and William H. Wilmot filed an answer to the cross bill of vendors and a cross bill in which they asked that they be decreed to be the owners of the whole amount of the awards allowed for the property in which they had a vendees’ interest. A stipulation was filed that the pleadings of all former vendees are the same except as to the name of the land contract purchaser, number of lot condemned and amount of award. A separate answer and cross bill was filed for Andrew L. Speed and William II. Wilmot. All of the vendees in the land contracts seek a decree for the full amount of the awards.
The trial court found as a fact that at the date of the awards none of the properties were worth the balance due on tbe contracts, the value having depreciated from one-half to two-thirds of the balance due. The trial court held that the vendors are entitled to the whole of each award without interest, subject to the right of defendant Speed,to have the amount of the awards on his lots applied upon the balance owing upon his land contracts as vendee for the purchase of said lots.
Appellants urge that a land contract vendor may not recover any of the purchase price mentioned in a land contract after he has declared forfeiture and cite Balesh v. Alcott, 257 Mich. 352, as authority for such claim. There can be no dispute about this' theory of the law, but it has no application to the issue involved in this case. In the Balesh Case we held that a vendor who forfeited a contract by commencement of summary proceedings before a circuit court commissioner may not waive such forfeiture by bringing suit in equity for foreclosure and deficiency decree without the consent of the vendee. In the case at bar, the vendors do not seek a deficiency judgment against the vendees. They seek the award because their security has been decreased by the condemnation proceedings.
In the Matter of the Petition of Dillman, 276 Mich. 252, the State highway commissioner began proceedings to condemn a reciprocal negative easement in connection with the widening of Woodward avenue and relocation of the right of way of the Grand Trunk Railway. The Metropolitan Life Insurance Company had a mortgage on the property some two years prior to the determination of necessity. The mortgage was foreclosed and the insurance company purchased the property on the foreclosure sale on September 10, 1934, for $2,998.67 leaving a deficiency of $464.86. The report of commissioners fixing compensation for the taking of the property was made August 13, 1935. The problem iu the above ca'se was whether the insurance company as mortgagee could share in the award to the amount of its deficiency judgment. We quote from that case as follows:
“ ‘Thus, where the whole of the mortgaged land is taken in the proceedings, the mortgagee is entitled to the entire award or at least to so much of it as is necessary to satisfy the mortgage indebtedness.’ 58 A. L. R. 1534, note.
“This rule was adopted in City of Detroit v. Fidelity Realty Co., 213 Mich. 448.
“ ‘Where only a part of mortgaged property is taken in eminent domain proceedings, the mortgagee is entitled, generally speaking, to only so much of the award as is necessary to compensate him for his interest in the part taken.’ 58 A. L. R. 1539, note. * * *
“The underlying theory of the right of a mortgagee to part or all of the award is that, as the parties are powerless to prevent the taking of the property by the public and the mortgagee loses his lien upon the part taken, the award equitably stands in the place of the land taken; and, as the mortgage does not cover the award in law, it is held to operate as an equitable lien thereon. This results in two separate incumbrances, the legal mortgage lien on the remainder of the land and the equitable mortgage lien on the award.”
The same reasoning should hold true as to vendors in a land contract. The vendor was powerless to prevent the taking of the property by the public, his security was lessened, and he lost all interest in the property condemned. We conclude, as in the Stragea, Kerr and Gibson contracts, that where a vendee fails to make his payments on a land contract, and the contract is forfeited and a judgment for posses sion is given, to the vendor prior to the condemnation award, and where the amount of the award due is less than the balance due on the contract on the date that the writ of restitution is issued, then the vendee named in the contract has no interest in any part of the award; or, as in the Euttan contract, if the unpaid balance due on the contract at the time the writ of restitution is issued is greater than the amount of the award, the contract vendee has no interest in the award.
The facts in the Speed case are different than in the other cases in that no proceedings were taken to terminate the land contract, but they are similar in that the amount of the awards is less than the balance due on the contracts. The trial court held that the vendors were entitled to the entire amount of the awards subject to the right of the vendee to have the amount of the awards applied upon the balance due on the contracts as of the time of payment of the awards. The trial court came to the correct conclusion. It was an equitable result. If the vendee elects to continue making his payments on the contracts, he has not been harmed as he will be given credit for the amount of the awards, or if a judgment for possession is given to the vendors, then the vendors will be compensated for their loss of security.
In all of the awards the trial court denied interest on the awards.
In 30 Am. Jur. p. 43, §53, the general rule is announced as follows:
“It is usually held that where a certain sum is due and by the interposition of the law the payment thereof is prevented through no fault of the debtor, interest will not run during the time the debtor is prevented from making payment, because in such a case he will not be deemed to be in default. ’ ’
In the case at bar, the State highway commissioner was ready and willing to make payment, but was prevented from doing so by the claims of defendants. It became necessary for him to file a bill of interpleader to determine who was entitled to the awards. In such cases no interest will be allowed on the awards.
The decree of the trial court is affirmed. The vendors may recover costs as against the vendees named in the land contracts.
North, C. J., and Starr, Wiest, Butzel, Bushnell, Boyles, and Reid, JJ. concurred. | [
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Sharpe, J.
This is an appeal from an order dismissing plaintiff’s bill of complaint, filed for an accounting.
Prior to March 1938, plaintiff was employed as a draftsman for the Pontiac Motor Car Company and his father, Victor E. Swanson, was unemployed. At this time defendant, I. T. Wedin, and Paul Myers were copartners in a business known as I. T. Wedin Company whose purpose was to engage in the designing of tools, dies and fixtures for manufacturers. About this time these parties began discussing the affairs of the copartnership. The purport of such discussions was that the copartnership was in need of cash in order to operate as a going concern; and that Victor E. Swanson, who was then unemployed, and Stanley Swanson, who at that time was working part time, were interested in creating jobs for themselves.
As a result of these discussions, the following agreement was entered into:
‘ ‘ This agreement is drawn up to cover a transaction, as stated in the forthcoming paragraphs, between Ivor T. Wedin and Paul Myers being partners of equal interest in the I. T. Wedin & Co. engineering service and between Victor E. Swanson and Stanley Swanson being mutual investors in said I. T. Wedin & Co.
“In consideration of an investment by Victor E. Swanson and Stanley Swanson in the I. T. Wedin & Co. of $1,000, it is agreed that said sum is to be paid back at an interest of six per cent, per annum from the earnings of the I. T. Wedin & Go., or by Ivor T. Wedin and Paul Myers, individually.
“It is also agreed upon that in further consideration of above investment, Stanley Swanson is to receive 10 per cent, of the profit earned by the I. T. Wedin & Co. as long as he remain an active employee of the company, said employment to be terminated by Stanley Swanson himself.
“It is also agreed upon that Victor E. Swanson is authorized to promote business for the I. T. Wedin & Co. at his own discretion and at a compensation of ten per cent, of volume created by his effort. ’ ’
Following the execution of the above agreement, each of the Swansons gave a check for the sum of $500 payable to the I. T. Wedin Company. Immediately after the execution of the agreement, Stanley Swanson gave up his work at Pontiac Motor Car Company and reported for work at the I. T. Wedin Company’s place of business. There was no drafting work to do for the first 30 days, but Stanley Swanson did some soliciting of business during this period. The other parties also attempted to get business for the firm, but were not very successful and as a result there was little work for any of the parties to do. During the month of July or August, 1938, Paul Myers took a job with the Paramount Engineering Company. In August, 1938, Stanley Swanson took a job with the Chandler-Evans Corporation with the knowledge and consent of Mr. Wedin. In September, 1938, the Chandler-Evans Corporation sent some work to the Wedin Company. Plaintiff, Stanley Swanson, remained with the Chandler-Evans Corporation until the fall of 1939, when he went to work for the Holley Carburetor Company.
In January, 1939, Victor Swanson informed defendant Wedin that he wanted to get his money out of the copartnership and a 30-day note signed by Wedin and Myers was given in the amount of $595.98. In April, 1939, the copartnership was dissolved and defendant Wedin assumed all obligations of the partnership. On September 5, 1939, defendant paid plaintiff $250, but no statement was given as to what this payment was for.
In January, 1940, plaintiff began working for I. T. Wedin Company as a draftsman at a salary of $110 per week, which was the current rate paid to draftsmen and drafting designers. In December, 1941, plaintiff was also' paid an employee’s Christmas bonus of $220.
In October, 1940, plaintiff asked for and received $50 to apply on his investment. In November, 1940, he was paid another $50; and on December 5, 1940, he was paid $400 which paid up the remainder of his investment.
In April, 1942, plaintiff left the employ of I. T. Wedin Company and filed the instant bill of complaint in August, 1942. In his bill of complaint, plaintiff alleges that defendant failed, neglected and refused to give an accounting of his profits or to give him 10 per cent, thereof as is provided in the agreement. The relief sought is for such accounting and a lien upon the assets of the I. T. Wedin Company as security for the payment of the amounts found to be due. Defendant filed an answer in which he admits entering into the agreement, but denies that plaintiff is entitled to an accounting. The trial court, after a hearing, dismissed plaintiff’s bill of complaint on the theory that the loan had been repaid.
We are not in accord with the conclusions reached by the trial court. The agreement was entered into on March 3, 1938. It provided that the loan was to be repaid out of the earnings of the copartnership or by the copartners. It also provided that Stanley Swanson “is to receive ten per cent, of the profit earned by the I. T. Wedin & Co. as long' as he remain an active employee of the company.” It is undisputed that plaintiff was in the employ of defendant company from January, 1940, to April, 1942, at a salary of $110 per week; and that during this time the I. T. Wedin Company was operating profitably. The trial court was under the impression that the repayment of the loan and the hiring of plaintiff at a stated weekly salary cancelled the agreement. We have examined the record carefully and failed to find where plaintiff and defendant ever agreed to any modification of the agreement. There was no understanding that the repayment of the loan or the employment of plaintiff at a stated salary terminated the written agreement. Plaintiff is therefore entitled to 10 per cent, of the profits of I. T. Wedin Company while he was an active employee of the company.
The decree of the trial court is reversed; and the cause remanded for an accounting in accordance with the written agreement. Plaintiff may recover costs.
North, C. J., and Starr, Wiest, Butzel, Bushnbll, Boyles, and Reid, JJ., concurred. | [
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Boyles, J.
This is a bill of complaint to set aside
an agreement entered into by plaintiff to accept $400 in full satisfaction of a claim for further compensation, and an accompanying release from further liability. Plaintiff suffered a compensable injury in 1935 while in the employ of the defendant. By an agreement ■ filed with and approved by the department of labor and industry he was paid compensation for his injury. In January, 1937, while receiving compensation he signed and filed with the department a final settlement receipt, which was approved by the department. A. year later, represented by an attorney, he filed a petition for further compensation, and by several agreements, approved by the department, was paid further compensation through September 21, 1938, the total amount of all compensation received by him up to that time being $1,536.27. On that date he filed the agreement in question and a petition to redeem liability, stating therein that upon the receipt of $400 additional
“the claim of the plaintiff for compensation will be forever and permanently compromised, adjusted and settled in accordance with 2 Comp. Laws 1929, § 8438, as amended by Act No. 148, Pub. Acts. 1935 (Comp. Laws Supp. 1940, § 8438, Stat. Ann. § 17.172), and that payment of $400 shall be forthwith made in accordance with said section and that •upon such payment, the liability of the defendant for compensation payments to the plaintiff shall be redeemed in accordance with said section and plaintiff’s right to any further and future compensation shall end.”
The department entered an order approving the agreement to redeem liability in the lump sum of $400, plaintiff accepted payment and filed a final receipt and release of defendant from further liability. In 1941 plaintiff filed a bill of complaint in the circuit court for Muskegon county in chancery, in the case now before us, asking the court to set aside the settlement and to hold for naught his release and waiver of liability, on. the ground that the settlement and release had been procured by false representations. Issue was joined, and after a hearing the court held that plaintiff had failed to prove that the settlement was entered into as the result of any fraud practiced on plaintiff and entered a decree dismissing the bill of complaint. Plaintiff appeals and we hear the case de novo.
The only meritorious question presented is, whether plaintiff was induced to enter into the settlement and sign the receipt, release and waiver, by means of fraud perpetrated on him by the defendant or its insurance carrier. To establish fraud plaintiff relies solely on his own testimony. He offered no other proofs. He testified that on September 21, 1938, a Mr. Uridge (attorney for defendant’s insurance carrier) offered him $350 and told him it would be a nice sum in settlement, that he would soon be able to return to work. He (plaintiff) refused the offer; the offer was repeated on September 23d and 24th, and again refused. He testified:
“Q. When was the next offer made?
“A. The next offer was made on or about the . 26th, I believe. Mr. Uridge said that he had got it up to $400 and he had used his influence to get it up there and that would be all I would be able to get.
“Q. What did you tell him then?
“A. I accepted it.
“Q. Was the doctors present?
“A. The doctors was present. They thought that would be a nice sum of money for me.
“Q. Did you talk with the doctors about your injuries ?
“A. There was nothing for me to say. The doctor said it was only skin irritation when he dressed the leg. He said it was all healed but that and I would soon be going back to work.”
Plaintiff further testified that the next day, September 27th, plaintiff and Mr. Uridge went to Lansing before the department of labor and industry where he signed the final papers and received the $400. It was not claimed that he had fully recovered from the injury, but he claims that his condition was misrepresented to him, that it was not true he would soon be able to return to work, that he subsequently became worse and unable to work.
Plaintiff’s petition to the department of labor and industry, dated September 21, 1938, agreeing to accept $400 in a lump sum in full settlement, was in part as follows:
“Do not sign this agreement unless you intend to settle your compensation ease permanently.
“The above parties represent unto the department of labor and industry, as follows: * * *
“Petitioner has been paid compensation through September 21, 1938, amounting to a total sum of $1,536.27 that petitioner desires to return to his home in Lexington, Mississippi; that petitioner is having his left leg treated by Dr. Colignon and is confident that his sister in Lexington, Mississippi, can entirely cure this leg, and that by being at his home it will generally benefit him; that petitioner can rent a house and lot in Lexington, Mississippi for approximately $4 per month and can grow sufficient crop to support himself and his children; that petitioner feels that he will be greatly benefited and improved both mentally and physically by obtaining this settlement and thereby permitting him to return to his home; that petitioner can also obtain work as a’ house man in several families in his home town and will thereby be able to support himself and his three children. *' * *
“Wherefore, it is agreed between the parties that the department of labor and industry may enter an order in this cause providing that upon payment of the sum of $400 by the defendant to the plaintiff, the claim of the plaintiff for compensation will be forever and permanently compromised, adjusted and settled. * * *
“Hugh Thomas (Signed)
“Plaintiff.
“Dated September 21, 1938.
“The above agreement and petition was personally read by Hugh Thomas * * * in our presence:
“N. W. Scholle, M.D. (Signed)
“C. Baker, E.N. (Signed)”
Caroline Baker, the registered nurse who witnessed the above petition, testified:
“Q. Do you remember in 1938, in September, when this discussion arose about his (plaintiff) wanting to leave the State?
“A. Yes, Ido.
“Q. Were you there present on the 13th of September when he talked that over with Mr. Uridge?
“A. Yes. I was in the first aid.
“Q. Do you remember what was said and who brought it up ?
“A. As I can recall, Hugh wanted to go home. He said that a relative, or his sister I think it was at that time, he felt could cure him, and that he wanted to get away at that time. He was dissatisfied all during the course of his treatment.
“Q. Did he tell you where he wanted to go?
“A. He wanted to go back to his home in Mississippi.
“Q. Do you remember the name of the town?
“A. Lexington.
“Q. You were there when he made that statement?
“A. Yes.
“Q. Did he bring the matter up or did Mr. Uridge or someone else bring the matter up?
“A. I think he was the one that brought it up.”
Another witness testified:
“Q. On any of those occasions I will ask you whether or not you discussed with him (the plaintiff) anything about his going to his home in Mississippi.
“A. He mentioned one day he would like to have his money in one lump sum so that he could purchase a farm somewhere in Mississippi,, and he had planned to take his children there; he had a sister there who was going to care for his children, and he wished to go there to settle down, he told me.
“Q. He said he wanted to purchase a farm, did he?
“A. That is right.
“Q. Who brought that conversation up?
“A. Mr. Thomas did.
“Q. Did you talk with him on other occasions about the same thing thereafter?
“A. I told him he would have to see Mr. Uridge about it.”
Plaintiff’s petition came on for hearing before the department of labor and industry on September 27, 1938. Mr. Uridge testified as to what took place at the hearing, as follows: ■
“Q. Do you recall who it was that sat on that hearing on that commission?
“A. I know that Mrs. G-arner (commissioner) was there and I believe Mr. Cassin was there. I am sure tha't Mr. Cassin and Mrs. Garner were there. Whether Mr. Kirkby was present I am not positive about that. He was the third commissioner.
“Q. What transpired?
“A. At that time'when the case was called by Mrs. Garner, Hugh Thomas was sworn, and then Mrs. G-arner asked if he had an attorney and he said he did not, and then she asked whether or not I would be permitted to present the facts, and the facts were presented, and then Mr. Thomas was cross-examined by Mrs. Garner as to what he wanted to use the money for and his condition and so forth, and that ended the hearing.
“Q. Did he have a full opportunity there at that hearing, so far as you were able to observe, to make any statement that he saw fit in respect to the matter ?
“A. Yes, sir.
“Q. Then Commissioner Garner, when she interrogated him did she go into the matter rather fully?
“A. Very thoroughly, as to get going out of the State, going to Lexington, Mississippi, and I recall her inquiring as to the condition of his legs, and I am very confident that I do recall him saying that his sister could cure those legs when he got home, and that he was just fed up with the treatment he had received here, everything had been bad luck for him.”
•We agree with the circuit judge that plaintiff failed to prove that the settlement and release of liability were procured by fraud. It is outside the issue in the case that plaintiff later found that he had not recovered to the extent expected, at the time the settlement was made. We are convinced that he fully understood that the settlement was final, and the question as to whether his condition was worse than he then believed it to be is not for decision in this proceeding. The decree must be affirmed, with costs to defendant.
North, C. J., and Starr, Wiest, Btttzel, Bttshnell, Sharpe, and Reid, JJ., concurred. | [
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Boyles, J.
This is an automobile-streetcar collision case. The only question involved is whether plaintiff’s decedent was guilty of'contributory negligence as a matter of law.
On Saturday, May 24, 1942, at about 2:30 in the afternoon, plaintiff’s decedent was driving his automobile west on Palmer avenue in Detroit. Palmer avenue and Grandy avenue intersect at right angles. Grandy is a narrow street with a single streetcar track in the center. On approaching Grandy avenue plaintiff’s decedent stopped his automobile back of the east crosswalk of Grandy, about 25 or 30 feet east of the streetcar track. He then started up and attempted to cross Grandy, traveling from 5 to 8 miles per hour. A streetcar was approaching the intersection from the south, on Grandy avenue, and when plaintiff’s decedent was about 25 feet from the streetcar track this streetcar was 200 feet south of the intersection and approaching at the speed of 30 to 35 miles per hour. There was no other traffic, and nothing to prevent plaintiff’s decedent or the motorman of the streetcar from each seeing the other or from judging their rate of speed. Neither one of them slowed down, both the streetcar and plaintiff’s decedent’s automobile continued at approximately the same rates of speed, and the inevitable collision occurred at about the center of the intersection of Palmer and Grandy avenues.
The collision was witnessed by two entirely disinterested persons, both of whom were called and testified as witnesses for the plaintiff. There is no essential disagreement as to the facts. Plaintiff’s decedent, traveling about 25 feet at 5 to 8 miles per hour, would reach the center of the intersection at approximately the same time as the streetcar, traveling 200 feet at 30 to 35 miles per hour, would reach the same place. There was some testimony that plaintiff’s decedent looked. "Whether or not he did so is immaterial under the circumstances. He either saw, or should have seen, that an accident must occur unless either he or the streetcar stopped or sloped down. In attempting to cross Grandy avenue ahead of the rapidly approaching streetcar, plaintiff’s decedent did not use the care and caution that a reasonably prudent driver is expected to use under the same circumstances. Both parties were guilty of negligence, and the contributory negligence of plaintiff’s decedent bars recovery.
There was some slight testimony that the speed of the streetcar was increased, but no showing as to how much. Plaintiff does not base her claim for recovery on subsequent or discovered negligence, and the proofs fail to establish it. Either defendant’s motion for directed verdict, or for judgment non obstante veredicto after the jury verdict for plaintiff, should have been granted.
Reversed and remanded for entry of judgment for defendant.
North, C. J., and Starr, Wiest, Butzel, Bush-hell, Sharpe, and Reid, JJ., concurred. | [
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Reid, J.
The prosecution in this ease is brought under the Michigan penal code, Act No. 328, § 455, Pub. Acts 1931 (Comp. Laws Supp. 1940, §17115-455, Stat. Ann. § 28.710), as to count 1, and as to count 2, under Act No. 328, § 457, Pub. Acts 1931 (Comp. Laws Supp. 1940, §17115-457, Stat. Ann. § 28.712), the first section pertaining to pandering and the second to acceptance of proceeds of prostitution.
The claim of the prosecution under the first count under section 455 is that the three defendants, Bernice Lane, William Lane and Blane Beeler, the last being the appellant, on February 11, 1943, in the city of Detroit did encourage Louise Young to become a prostitute. The second count under section 457 charges the defendants received proceeds of prostitution of Louise Young.
Louise Young, after reciting her various employments, some of which were of doubtful moral character, testified that she was at the residence of defendants Lane some time about 2 o’clock in the morning of February 11, 1943, and went with Mrs. Lane to room 111 of the Field hotel; that no one other than defendant Beeler, the bellhop, was there; that he told her to come with him; that while Mrs. Lane stayed in room 111, witness went with Beeler .to a room on the second floor; that before she went in he told her to ask for $5 and that she was supposed to have sexual intercourse; that she did have sexual intercourse with a man in that room for which she received $5; that when she came out of the room the defendant was standing beside the door, and took her downstairs; that she gave the $5 to him and he did not give her back any part of it; that he took her to a room on the fourth floor, told her to ask for $10 and said that there was a man in there; that she went in, had an act of sexual intercourse with that man also, for which she received $10; that when she came out defendant Beeler was in the elevator; that she gave him $4 out of the $10; that out of the $15 which she had receivedup to this point she gave Beeler $9, and that the defendants Lane shared in the proceeds. She also testified that she had never before committed any act of prostitution.
Defendant Bernice Lane pleaded guilty.
The jury found defendant Beeler guilty under the first count. They must have believed the testimony of Louise Young. Considering all the testimony in the case, there is a sufficient basis for the jury’s verdict.
Error is assigned on the matter of a telephone conversation testified to by Louise Young. Her testimony was that she went to the residence of defendants Lane and that some time after 2 o’clock in the morning Mrs. Lane called the Field hotel on the telephone.
“Q. Did she call the Field hotel?
“A. Yes.
. “Mr. Plishow: I am going to object to that; she can’t testify to what somebody did on the telephone, or where she called.
“The Court: She can testify whether or not the telephone was answered.
“Mr. Pliskow: Yes, but that is as far as she can go.
“Q. - Who went to the telephone?
“A. Bernice. Lane.
“Q. Did you hear her talk to somebody over the ■ telephone?
“A. Yes.
“Q. Will you tell the court and jury what she said over the telephone?
“A. She asked the bellhop at the Field hotel—
“Mr. Pliskow: I am going to object to that.
“The Court: This witness doesn’t know to whom she was telephoning.”
Whereupon questions were asked and answers given indicating that Louise Young heard both ends of the telephone conversation, and that she could hear the response from where she was.
“Q. Tell us what that conversation was. You say she asked, Mrs. Lane asked somebody if they .could talk?
“A. Yes. •
“Q. Did you hear what the answer was?
“A. Yes.”
She testified further that the party' on the other end of the telephone told Mrs. Lane to call the booth number and that she heard the person who was calling tell her (Bernice Lane) to get a cab and come down there. Prejudicial error was not committed by the court in the above rulings.
The foregoing rulings dispose of the questions involved in the appeal as stated in appellant’s brief and we find no reversible error in that respect.
Conviction affirmed.
North, C. J., and Starr, Wiest, Btjtzel, Bushnell, Sharpe, and Boyles, JJ., concurred. | [
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Sharpe, J.
This is an appeal from a decree entered May 5, 1944, as amended February 9, 1950. The facts giving rise to the mentioned decree are as follows:
In 1934, A. C. Monteith conceived the idea of purchasing a large area of land in Montmorency county, suitable for hunting and fishing purposes, and subdividing a portion of the area into lots for subsequent purchasers.
Pursuant to this plan Monteith purchased approximately 10,000 acres of land, and of this land he subdivided a part of the acreage into 3,500 lots. He was instrumental in organizing a corporation known as the Monteith Land Company, having for its purpose the promotion of sales of the subdivided lots, and at the same time providing a membership for the club. He then organized a corporation known as Canada Creek Ranch Association, which was to be the club to which every purchaser of a lot would automatically become a member.
In 1934, the 2 corporations entered into a contract whereby the members were given a one-half interest in the mineral rights in the land, excepting those rights reserved by the State of Michigan, and ownership certificates for lots purchased.
In 1939, the contract was changed, whereby Monteith Land Company retained all mineral rights, and lot purchasers were given membership certificates.
Up to the fall of 1939, there had been no membership meeting, but shortly' thereafter a meeting of the membership was called, bylaws adopted providing for the election of 9 directors, 5 of such directors to be selected by Monteith Land Company, and the membership selecting the other 4 directors. It appears that through the formation of the 2 corporations Monteith intended to keep control over the project until such time as the subdivided lots were sold.
Only one set of books was kept for the 2 corporations, and it did not reflect the true financial picture of the individual corporation’s operations.
In 1942, the stockholders of the Monteith Land Company sold their stock to Thomas Herzog, who has since continued to own and control the Monteith Land Company.
In 1943, the members of the Canada Creek Ranch Association filed a bill in chancery against the Monteith Land Company for an accounting and relief from unreasonable interference and domination by the Land Company.
The trial court, after hearing evidence, entered a decree on May 5, 1944, which provided that each corporation was to operate separate and apart from each other, except as to such rights and obligations, as would be necessarily incident to the mutual interests of each in the successful operation of the recreation acreage; that the 1939 and 1940 contract between the 2 corporations are null and void because of breach of trust on the part of the directors of the 2 corporations; adjustment of the financial accounts between the 2 corporations; making a determination of the names and terms of office of each director of Canada Creek Ranch Association, and reducing the right of Monteith Land Company to select directors for Canada Creek Ranch Association from 5 directors to 3 directors.
For a time following the entry of the decree the situation seemed to improve, but personal animosities subsequently generated an uncooperative spirit •between the members of the Canada Creek Ranch Associátion and the Monteith Land Company in the person of Thomas Herzog. In June, 1948, the Monteith Land Company filed a petition to modify the 1944 decree, claiming that Canada Creek Ranch Association has followed a course of deliberately refusing to assist the Monteith Land Company in selling the lots, contrary to paragraph 19 of the decree:
“It is Further Determined, Ordered, Adjudged and Decreed, that Canada Creek is entitled to all income from the Ranch House and the entire property described in exhibits “A” and “B” (excepting the building sites therein reserved for sale) together with all dues collected or owing out of membership in ,the aforesaid Canada Creek and all income of every kind and nature whatsoever, excepting only the return from .the sale of lots in the before described property. It is further determined that all lot purchasers, as a condition to the purchase of lots as aforesaid, shall, upon making purchase thereof, become liable for dues regularly payable by members of Canada Creek as a condition to the use of the aforesaid club property generally, the recreational privileges and the club house and facilities. Canada Creek shall be entitled,, at all times, to impose reasonable rules and regulations upon its members governing its operation, the collection of dues and the use of the premises and club facilities, but shall not unreasonably interfere with the proper sale of lots by Monteith; and said Canada Creek, its officers, directors and agents are specifically directed to cooperate with said Monteith, but without expense, to make available to Monteith, the facilities of the club, club house and real estate herein involved for the purpose of allowing inspection by prospective purchasers and for the serving of such meals and the use of such rooms at the Ranch House, at the expense of Monteith, as do not unreasonably interfere with the use of said facilities by the members of Canada Creek.
“Canada Creek is required to pay all expense of said Ranch House facilities and the property described in exhibits ‘A’ and ‘B’, including real estate taxes thereon and including taxes on unsold lots, and specifically excepting the cost of constructing roads to the building sites; but all members of Canada Creek shall have the right to use said property, including the unsold lots, at all times for proper purposes. Monteith shall make reasonable efforts to dispose of the lots not as yet deeded by it to prospective members and in the event of the failure of Monteith to dispose of all remaining unsold lots within a reasonable time, taking into consideration economic conditions, the demand for similar properties and all conditions properly affecting such sales, this court reserves jurisdiction to require Monteith to pay taxes upon undeeded lots and to enter such further order by way of amendment to this decree as shall reasonably require Monteith to carry out its undertaking by this court found, to promptly sell and dispose of the remainder of the now undeeded lots.”
It was also claimed that officers and agents of Canada Creek Ranch Association have slandered defendant Herzog with prospective customers, and have made resales of lots at a discount, thereby making it impossible for Monteith Land Company to make its planned sales.
The officers of Canada Creek Ranch Association filed an answer to the above petition, denying the claims made in the petition, and also filed a petition for amendment to the decree, in which it is alleged:
“(b) That your petitioner is informed and believes and upon information and belief charges the fact to be, that respondent, at various times and on days and dates best known to respondent, has substantially increased the proposed sale price of lots intended for sale by Monteith Land Company and ordered sold pursuant to the terms of the aforesaid decree.
“(c) That according to the information and belief of petitioner, economic conditions of the public generally and of prospective purchasers for the unsold lots have, since the entry of said decree, been conducive to the sale of like or similar lots and that like or similar lots have been sold in increasing numbers throughout the State of Michigan but more particulárly in the general area of the lots here in question to or through the year 1947.
“(d) That according to the information and belief of your petitioner and upon information and belief petitioner charges the fact to be that respondent has refrained from making a reasonable effort to sell or dispose of the maximum number of lots at a fair price and has failed to. fairly attempt to sell the aforesaid lots to the public generally but has, 'on the contrary, attempted by various means, contrary to the terms of the’ aforesaid decree, to interfere in the management and operation of petitioner corporation and to cause petitioner to purchase from respondent or cause to be purchased from respondent the remaining lots unsold by respondent.
“(e) That the cost and expense of petitioner for the payment of taxes upon the lots owned by Monteith Land Company has at all times been substantial but has materially increased in the various years; succeeding the entry of the decree herein.
“(f) That according to your petitioner’s information and belief, respondent has failed to construct various roads to various unsold lots, contrary to the obligation of respondent to so construct said roads and said lots have remained less readily salable than they would have been had respondent complied with its duties under the decree of this court and the contract thereby affirmed.
“That according to the information and belief of your petitioner, respondent has, by the dissemination of untrue and misleading statements at a stockholders’ meeting held on March 31, 1948, and at various other days and dates best known to respondent, attempted’ to cause dissension within the mem bership of petitioner and. has improperly and contrary to the terms of the decree attempted to interfere with the management of petitioner’s club and has, accordingly, to some extent, made it more difficult for respondent itself to sell lots to members or others. That such activity on the part of respondent corporation is contrary to the terms of the decree and the determination of this court, according to the information and belief of your petitioner.”
The court heard the petitions and permitted the taking of testimony, and on February 9, 1950, filed an amended decree, the pertinent parts of which read .as follows:
“1. It is Hereby Ordered and Decreed that Monteith Land Company shall, effective upon the election of directors of Canada Creek Ranch Association to be held in the spring of 1950, pursuant to the existent bylaws of Canada Creek Ranch Association, be entitled to name not more than 2 directors of Canada Creek Ranch Association and the members of Canada Creek Ranch Association shall, effective at said election, be entitled to name the remainder of the directors. That effective with the election of directors to be held in the spring of 1951, pursuant to the existent bylaws of Canada Creek Ranch Association, Monteith Land Company shall be entitled to name not more than 1 director of Canada Creek Ranch Association and the members of Canada Creek Ranch Association shall, effective at said election, be entitled to name the remainder of the directors. ■
“2. It is Further Ordered and Decreed that effective with the election of directors of Canada Creek Ranch Association in the spring of 1952, Monteith Land Company will not be entitled to elect any members to the board of directors of Canada Creek Ranch Association.
“3. It is Further Ordered and Decreed, that the newly-elected member of the board of directors of Canada Creek Ranch Association in the instance of each of the 3 replacements indicated in the preceding paragraphs hereof shall be elected for a term of 3 years. . .
“4. It is Further Ordered and Decreed, that such directors as at any time act as the appointees of Monteith Land Company shall in all manner and in all respects devote their efforts and their responsibilities solely to the protection of Monteith Land Company in the sale by Monteith Land Company of its remaining unsold lots and' shall not, in any manner, interfere with such activities of Canada Creek Ranch Association as do not materially affect Monteith Land Company in the sale of its unsold lots and Monteith Land Company shall, in no manner, either directly or indirectly, interfere with nor take part in the conduct of the affairs of Canada Creek Ranch Association except to the extent that any action or inaction of Canada Creek Ranch Association affects Monteith Land Company in the sale of Monteith Land Company unsold lots and Monteith •Land Company, its officers, directors, agents and representatives are hereby restrained and enjoined-from such interference.
“5. Pursuant to stipulation of the parties in open court, It- is- Further Ordered and Decreed that Thpmas F. Herzog is to be replaced upon the board of directors by his appointee from time to time and the aforesaid Thomas F.' Herzog is enjoined from at any time acting as director of Canada Creek Ranch Association as an appointee of Monteith Land Company.- - v.
_ “6. .It is Further Ordered and Decreed that effective with taxes payable covering the calendar year 1949, said taxes shall be payable by Monteith Land Company upon all such lots as are by it owned and taxes during the year 1949 and Canada Creek Ranch Association is relieved from the responsibility for the payment of such taxes and is relieved from the payment of any taxes upon lots owned by Monteith Land Company in subsequent years. Provided, however, that in the event Canada Creek Ranch Association pays or caused said taxes to be paid for said year or for any subsequent year prior to the disposition by Monteith Land Company of the last of its unsold lots, then and in that event Canada Creek Ranch Association shall be entitled to reimbursement therefor upon demand from Canada Creek Ranch Association to Monteith Land Company and in the event of failure to pay such demand may have judgment and execution therefor upon application for such purpose made to this court.”
Defendant Land Company appeals and urges that the court was in error in dismissing its petition, as the evidence shows the Canada Creek Ranch Association interfered with the Land Company’s sale of lots. From our examination of the record we conclude that neither party has been completely without fault, but the Monteith Land .Company, in the person of Thomas Herzog, has been more responsible for the difficulties than were the members of the Canada Creek Ranch Association. We are also of the opinion that the trial court ,has worked out a reasonable solution of the problems. There is competent evidence to support the finding of facts made by the court. A court of equity has power to interfere in the internal affairs of a corporation when there is fraud or breach of trust. See Dodge v. Ford Motor Co., 204 Mich 459 (3 ALR 413).
In Turner v. Calumet & Hecla Mining Co., 18Mich 238, we upheld a decree granting an injunction restraining the principal corporation from voting for directors in the subsidiary corporation.
In the case at bar Canada Creek Ranch Association was treated by Monteith Land Company as- a subsidiary corporation.
In our opinion the trial court was within his powers in regulating the election of directors of the Canada Creek Ranch Association. We have examined the record and conclude that the trial court arrived at the correct solution of the internal problems of the 2 corporations.
The decree is affirmed, with costs to. plaintiffs.
Dethmers, Butzel, Carr, Bushnellj Boyles, and Reid, J J., concurred. .
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Starr, J.
Appellant George P. Dowling appeals from a circuit court order affirming an order of the probate court which denied his petition to modify a previous order entered September 27, 1938, in the estate of Minnie Dowling, deceased.
The material facts are not in dispute. Minnie Dowling died in March, 1937, and her will, which was admitted to probate, bequeathed $10,000 to her husband, appellant Dowling, and her household goods and furniture to her said husband and appellee, Adelaide (Dowling) Stiles, a daughter by a former marriage. As the probate court directed the payment of the legacy and confirmed a division, of the household goods and furniture, those items are not involved in the present appeal. We are concerned only with the residuary estate, which was disposed of by the following provision of her will:
“I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, of every kind and nature, wheresoever situate, and of which I may die possessed unto my said daughter, Adelaide E. Dowling, and to her heirs and assigns forever; provided, however, that if my said daughter' shall die without child or children or issue of any deceased child during the life times of my said husband, George P. Dowling and of my sister Ida C. Carroll, of the city of Grand Eapids, Michigan,, then, and in that event, I give, devise and bequeath the said residue and remainder of my said estate unto my said husband George P. Dowling, and my said sister Ida C. Carroll, share and share alike, or to either of them surviving at the time of the. death of my said daughter.”
The will appointed deceased’s sister, Ida Carroll, and the Grand Bapids Trust Company (now Michigan National Bank) as executrix and executor. (We hereinafter refer to them as executors.) In 1938 they filed a petition in probate court asking, among other things, for the allowance of their final account as executors and for an order assigning the residue of the estate. Appellant answered the petition, contending that a trustee should be appointed to receive and hold the personal property in the residuary estate or, in the alternative, that appellee Adelaide Stiles be required to furnish bond conditioned upon her accounting for the personal property and rendering annual accounts. There being no applicable statute at that time, appellant’s contention apparently was based upon his claimed common-law right to have his contingent remainderman’s interest protected against improvident management by appellee as the life tenant. Appellee also answered such petition. On September 27, 1938, the probate court entered an order providing in part:
“(1) That under paragraph four the residuary clause of the last will and testament of Minnie Dowling, deceased, the daughter Adelaide C. Stiles (formerly Adelaide B. Dowling) her heirs and assigns, take a fee simple estate in the residue of the estate of the deceased subject to the executory devise that if she shall die without child or children or issue of any deceased child during the lifetimes of George P. Dowling and Ida C. Carroll, then and in that event the said residue shall go to George P. Dowling and Ida C. Carroll, share and share alike, or to either of them surviving at the time of the death of Adelaide C. Stiles.
“(2) That the executors shall turn over to Adelaide C. Stiles the residue of said estate and Adelaide C. Stiles shall,' during the lifetimes of-George P. Dowling and Ida C. Carroll, have the right to pay herself only the income from said residue, and shall invest and reinvest the corpus of said residue as she shall deem best and she is not required to make any periodic reports to this court.
“ (3) That the executors shall forthwith turn over to Adelaide C. Stiles the income from the said residue since the death of said deceased, and shall, until the residue is turned over to Adelaide C. Stiles in case an appeal is taken from this order, pay the income from said residue to said Adelaide C. Stiles at such times as the parties shall agree upon.”
On October 15, 1938, appellant filed notice of appeal, and on November 26,1938, appellee filed notice of appeal from the above-quoted order. Neither appeal was perfected. By reason of such appeals, and apparently without objection, the estate was held open and the residuary estate remained undis- ■ tributed. The executors continued to administer the estate, and the orders allowing their supplemental final accounts expressly provided that “the executors shall keep the estate open pending further order of the court.” 3 Comp. Laws 1929, §15728 (Stat. Ann. §27.2893), in effect when the probate court order of September 27th was entered, provided in part:
“The probate court shall, by a decree for that purpose, assign the residue of the estate, if any, to such persons as áre by law entitled to the same, subject, however, to the widow’s right of dower.” .
The above-quoted section 15728 was repealed by Act No. 288, Pub. Acts 1939 (probate code), effective September 29,1939. Chapter 2, § 95, of said probate code (Comp. Laws Supp. 1940, §16289-2 [95], Stat. Ann. 1943 Bev. § 27.3178[165]) provides as follows:
“The probate court shall, by order for that purpose, assign the residue of the estate, if any, to such persons as are by law entitled to the same: provided, however, that when 1 or more persons has a life estate in, or the right- to the use or income, for life, of, personal property without unlimited power to take or exhaust such personal property, the probate court 'shall either appoint a trustee to whom such residue of personal property shall be assigned in trust for the life tenant for the duration of his estate, or require a bond with sufficient surety from the life tenant conditioned on his accounting for said personal property, and the trustee thus appointed or .the life tenant furnishing bonds shall render annual accounts to the probate court in the same manner as that for which provision is made in the case of testamentary trustees.”
On February 15, 1943, appellee filed petition for an order to show cause why appellant’s appeal filed October 15, 1938, from the probate court order of September 27, 1938, should not be dismissed for want of prosecution. An order to show cause was issued, and on.April 9, 1943, the probate court dismissed appellant’s appeal. In the meantime, on February 18, 1943, appellant had filed a petition setting forth the steps and proceedings taken in the administration of the estate; that the residuary estate remained undistributed; and contending that the probate court order of September 27, 1938, should be modified or supplemented so as to comply with the above-quoted chapter 2, § 95, of the probate code. His petition prayed:
* ‘ That an order may be entered herein modifying or supplementing said order of September 27, 1938, and appointing a trustee to whom the residue of the personal property in said estate now held by said executors shall be assigned in trust for Adelaide C. Stiles during the lifetimes of Ida C. Carroll and George P. Dowling, or the survivor of them, or requiring Adelaide C. Stiles to furnish a bond with sufficient surety conditioned on her accounting for said personal property, and requiring the trustee so appointed, or said Adelaide C. Stiles if she is required to furnish such bond, to render annual accounts to this court in the same manner as that for which provision is made in the case of testamentary trustees.”
On April 9, 1943, an order was entered denying appellant’s petition on the ground that the order of September 27, 1938, was a final order assigning the residue of the estate and could not be modified or supplemented upon a petition filed more than three months after its entry. Appellant Dowling then appealed to the circuit court. TJpon a hearing, that court filed an. opinion in effect affirming the probate court order denying appellant’s petition. An order was entered in circuit court dismissing the appeal, and Dowling now appeals from that order.
The first question presented is whether or not, under appellant’s petition filed February 18, 1943, the probate court had jurisdiction to modify and amend its final order assigning residue entered September 27, 1938.
Appellant-contends that the above-quoted provision of the probate code enacted in 1939 created a new legal right and remedy which was available to him, as a contingent remainderman under the will, when he filed his petition February 18, 1943, to modify and amend the probate court order of September 27, 1938; that the probate court erred in refusing to appoint a trustee of the personal property in the residuary estate or, in the alternative, to require appellee Adelaide Stiles to furnish bond conditioned upon her accounting for such personal property and rendering annual accounts to the probate court. Appellee contends in effect that the order of September 27th was a final order assigning residue and that, appellant’s petition having been filed more than three months after the entry of such order, the probate court was without jurisdiction to amend it.
Act No. 288, chap. 1, § 19, Pub. Acts 1939, as amended by Act No. 26, Pub. Acts 1941 (Comp. Laws Supp. 1943, §16289-1 [19]; Stat. Ann. 1943 Rev. § 27.3178 [19]), provides in part:
“Each judge of probate shall have jurisdiction: jí, jj. WWW
“Of trusts and trustees in the execution of wills and administration of estates of deceased persons;
“And shall have and exercise all such other powers'and jurisdiction as are or may be conferred by law;
“To that end he (probate judge) may, upon the filing in said court of a petition therein, within 3 months of The original hearing,' or of the rendering or malting of any order, sentence or decree, as the case may be, and after due notice to all parties interested, grant rehearings, and may modify and set aside orders, sentences and decrees rendered in such court. ’ ’
In the case of Smolenski v. Kent Probate Judge, 301 Mich. 8, a petition was filed in probate court in November, 1940, for a rehearing and to set aside an order entered in September, 1935. Mr. Justice North, writing the majority opinion, said, p. 26:
“In the particular now under consideration the practice and powers of the probate court are prescribed by statute. These statutes are controlling. An attempted action by the probate court in violation thereof is a nullity because of the lack of jurisdiction. No appeal was taken from the order of Judge Dalton entered September 10,1935. The petition of the heirs filed November 1, 1940, which resulted in Judge Higbee’s order of April 12, 1941, was a rehearing and a redetermination of the matter adjudicated by Judge Dalton’s order of September 10, 1935. But by statute tbe time within which a petition must have been filed for rehearing in the probate court was then limited to 90 days from the date of the order of, which reconsideration was sought. The statute now provides three months. Act No. 288, chap. 1, § 19, Pub. Acts 1939, as amended by Act No. 26, Pub. Acts 1941 (Comp. Laws Supp. 1942, ,§ 16289-1 [19], Stat. Ann. 1941 Cum. Supp. § 27.3178 [19]). Except for this limited statutory jurisdiction probate courts would be without power to grant rehearings. Hitchcock v. Judge of Probate, 99 Mich. 128. Judge Higbee was without jurisdiction to rehear and review the adjudication by Judge Dalton made more than five years earlier. ’ ’
“The judgments of the probate court stand upon the same basis as the judgments of other courts, and are conclusive. The propositions passed upon become res judicata. Burgess v. Stribling, 134 Mich. 33, 38; Lawrence v. Hathaway, 128 Mich. 119, 123. This is true of an order or judgment of distribution of an estate, and the judgment, after a construction of a will, becomes res judicata of such construction.” Calhoun v. Cracknell, 202 Mich. 430, 435.
“A matter once fully adjudicated is conclusively adjudicated, as between the parties and privies. Hazen v. Reed, 30 Mich. 331. A judgment is res judicata upon the points directly involved and determined therein in a subsequent suit between the same parties. Harris v. Clark, 74 Mich. 334. Decrees and orders of the probate court, made in the exercise of its jurisdiction, are as final, and conclusive as those of any other court. Burgess v. Stribling, 134 Mich. 33.” In re Lugies’ Estate, 287 Mich. 710.
See, also, Westin v. Berrien Probate Judge, 306 Mich. 235; In re White, 300 Mich. 378 (138 A. L. R. 1034); Burnham v. Kelley, 299 Mich. 452; McDannel v. Black, 270 Mich. 305.
Appellant’s petition filed in February, 1943, was in effect a petition for a rehearing and to amend the probate court order of September 27, 1938. To grant such petition would in effect nullify the above-quoted statutory provision requiring a petition for rehearing to be filed within three months of the entry of the order sought to be amended. After the expiration of three months from its entry, the order assigning the residue of the estate became res judicata of the rights of the parties. As appellant’s petition to amend the order was filed more than three months after its entry, the fact that the estate was held open did not operate to give the court jurisdiction to amend.
To sustain appellant’s contention would result in making every probate court order subject to amendment at any subsequent time upon the enactment of a statute, which, had it been in force at the time the order was entered, would have affected the rights of the parties. The probate court did not have jurisdiction to amend its order of September 27, 1938. In view of our conclusion, other questions presented do not require consideration.
The order of the circuit court dismissing appellant’s appeal from probate court is affirmed. Appellee shall recover costs.
North, C. J., and Wiest, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Butzel, J.
Defendants, Frank N. Burke and Robert S. Burke, doing business as Wolverine Manufacturing Company, had contracted with the United States government to supply it with wooden chests. In order to manufacture these chests certain shooks and partitions which followed rigid government specifications were needed. It appears that plaintiff was interested in supplying defendants with these products and on June 25, 1942, wrote defendants quoting a price of $1.75 for each shook, based <fn the government specifications which defendants had furnished. On the 6th of the following month a letter was sent by plaintiff to defendants stating that the price per shook would be $1.75 delivered at Eau Claire, that “our Canadian mill” would ship two sets of spruce shooks, and that it would advise defendants of the price on the stock very shortly. Neither plaintiff nor defendants claim that this correspondence was binding or constituted a contract. On July 15, 1942, plaintiff’s vice-president, Mr. Huff, visited defendants and spoke to Mr. Robert S. Burke, regarding the shooks. Mr. Burke insisted on a lower price and presented Mr. Huff with two purchase orders, one for 16,650 sets of shooks at $1.60 and 16,000 partitions at 15 cents each, another one for 1,400 sets of shooks at $1.60 each. There was no written acceptance of these orders. The one for the larger amount refers to a shook of different design than the one for the smaller number. The question is whether these orders were accepted. Both sides presented evidence as to the discussions held on July 15th, and also as to telephone conversations and correspondence that followed shortly thereafter. Plaintiff claims that Mr. Burke was informed by Mr. Huff that the order was only conditionally .taken and was subject to further investigation. Defendant denies this. The letters between the parties have implications favoring the plaintiff. However, the testimony is conflicting as to what was said by Mr. Huff and Mr. Burke to one another at the meeting on July 15, 1942. On July 23, 1942, plaintiff wrote to defendants that it was shipping a carload of shooks per order of July 15, 1942, charging $1.60 per shook, that the mill was “doing plenty of lacking about this price,” that while they were of the opinion that the order would be “all right as it now stands,” nevertheless the mill would not definitely commit itself until it had exactly found out how the “sample car works out.”. The mill refused to produce the shooks at the price indicated.
Plaintiff would not send any more shooks or partitions at the price defendants allege plaintiff had agreed to deliver them. Plaintiff asserts that no contract was ever made or accepted, that it had not furnished part of the goods ordered, but only a sample carload to determine what the price should be, and that defendant could not by any stretch of the imagination, in view of the corre-, spondence and the interviews, claim that part of the order for a larger amount had been delivered. The testimony is wholly at variance and if plaintiff is correct, the minds of the parties never met. If defendant is correct, plaintiff should pay for the difference between the claimed price and the amount defendants were obliged to pay to secure the shooks from third parties, the main third party being the same Canadian mill which had filled the sample order and had protested against the price and to whom defendants paid a higher price.
Plaintiff instituted this suit to recover $4,194.84 as the sale price of lumber. Defendants admitted the debt less $634.68 as a credit but claimed damages because of the alleged breach of the “shook” contract as a set-off, and asked a large sum that they had to pay in excess of $1.60 per shook on that part of the alleged order that they had to purchase from third parties.
The case was carefully and thoroughly tried and the circuit judge, sitting without a jury, gave a judgment for plaintiffs for the full amount claimed and disallowed the set-off of defendants. Defendants on appeal raise many questions but in the last analysis the sole question is whether the minds of the parties met so as to form a contract; whethei the written order was accepted by plaintiff; whether the finding by the trial judge that it was not accepted and no contract was made was against the preponderance of the evidence.
The circuit judge was the trier of the facts and the credibility of the witnesses. The evidence was conflicting. We do not disturb the findings of fact by a judge sitting without a jury unless such findings are against the clear preponderance of the evidence. We do not find them to be such. Flat Hots Co., Inc., v. Peschke Packing Co., 301 Mich. 331.
For reasons cited, we affirm the judgment of the trial court in favor of plaintiff. Plaintiff will recover costs.
North, C. J., and Starr, Wiest, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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R. B. Burns, P. J.
Defendant pleaded guilty to forgery. He was assigned the status of a youthful trainee under the Holmes Youthful Trainee Act and was sent to the training unit at Ionia for a period not to exceed three years or until further order of the court. After spending approximately 11 months at the training center defendant was placed in the custody of the Muskegon County probation officer. Four months later his status as a youthful trainee was revoked and he was sentenced to prison for 6 to 14 years on the forgery conviction, with credit given him for time served under the Youthful Trainee Act.
Defendant appeals claiming his status as a youthful trainee was not properly revoked.
Before the defendant was assigned the status of a youthful trainee his attorney explained that this status only suspended his sentence for its duration. The defendant consented to such status and the court entered the order assigning the defendant the status of youthful trainee.
The record also contains a form dated June 7, 1967, recorded June 18, 1968, which designated the defendant as a youthful trainee, sentenced him to be committed to the department of corrections for three years and set forth terms of probation. The sentence was signed by Judge John H. Piercey in the absence of Judge Albert J. Engel. Terms of probation provided in part the following conditions:
“(3) That you shall report to the probation officer, either in person or in writing, as he may re quire, at least once each month or oftener if he requires it.
“(6) That you shall immediately notify your probation officer of all changes of address,- or employment.
“(10) That you shall associate only with law abiding citizens, and conduct yourself in a socially acceptable manner.”
A petition for a bench warrant and probation violation hearing was signed by the Muskegon County probation officer October 2, 1968, which indicated the defendant was placed on probation June 7, 1968 for two years. The petition stated the defendant violated the terms of probation in the following respects:
“1. He violated rule No. 3 in that he failed to report to the probation office since August 2, 1968;
“2. He violated rule No. 6 in that he failed to notify the probation office of his change in employment ;
“3. He violated rule No. 10 in that he failed to conduct himself in a socially acceptable manner.”
November 12, 1968 a hearing was held before the judge and the defendant’s status as a youthful trainee was terminated. A portion of the record follows:
“The defendant appears here for sentencing on his violation of probation.
“People move for sentencing.
“The Court: I believe the record should show this is not my understanding, Mr. Ladas.
“Mr. Ladas: I am sorry.
“The Court: There was no violation of probation charged.
“The defendant had been placed by me and assigned the status of a youthful trainee, and under that law the law vests in the judge the discretion to revoke that at any time and to reinstate the proceedings at the point interrupted which is what the-court did in this case.
“Therefore, Mr. Roberson, you are before the court now for sentencing under the original charge.
“Before the court imposes sentence is there any statement you wish to make, anything you want to say in your own behalf?
“The Defendant: No.
“Mr. Ladas: He said no.
“The Court: Mr. Cochrane, I have appointed you as attorney to represent Mr. Roberson. I had previously appointed V. S. Laurin, who is, of course, now deceased.
“Is there any statement you wish to make?
“Mr. Cochrane: No, your Honor.
“The Court: Mr. Roberson, I remember your ease very well. I remember the time you were first in my chambers with your folks, and this is a day I was hoping would never come. I don’t know what more I can say. You have been a total failure on your probation since you were released. We sent reports down and got you in the Michigan training-unit, which is very difficult to do, and we haven’t been able to succeed with you at all. I don’t know what will reach you. I don’t know what I can say to change you.
“It is the sentence of the court * * * .”
Unlike the general probation act for adults which, provides that a probationer shall be entitled to a copy of the charges which constitute the claim he violated probation and a hearing thereon, the youthful trainee act does not provide for any formal procedure for the court to revoke the status of a youthful trainee. Revocation is at the discretion of the trial judge. The specific issue of the necessity of a hearing to revoke a defendant’s status as a youthful trainee has not been decided in Michigan.
People v. Dudley (1912), 173 Mich 389, held that a probationer was not entitled to a hearing for revocation of probation. The probation statute in effect at that time did not require a hearing and the Court did not read such a right into the statute.
The rule was acknowledged in People v. Hodges (1925), 231 Mich 656, when the Court stated on p 659:
“While it is not necessary that a formal hearing be had to revoke the probation (People v. Dudley [1912], 173 Mich 389) * * * .”
This question has now been eliminated in cases involving adult probationers as the legislature has provided by statute for revocation hearings.
If we were to utilize the precedents of the general probation acts to decide the necessity of revocation hearings for youthful trainees, we would be compelled to hold that a revocation hearing was not necessary. However, the legislature has amended the original probation acts and granted rights to probationers. The right of the probationer to notice of the alleged violations of probation and the right of a hearing on the violation of probation have been afforded to adult probationers.
Both the United States Constitution and the Michigan Constitution guarantee all citizens the equal right of protection of the law. Re Gault (1967), 387 US 1 (87 S Ct 1428; 18 L Ed 2d 527) held that the Fourteenth Amendment (see fn 5) was for minors as well as adults. The Court also emphasizes that the basic requirements of due process and fairness be satisfied in such cases.
The legislature has provided certain rights to adult probationers and we see no reason why the same rights should not be afforded to juveniles under the youthful trainee act.
The case is remanded to the circuit court for a hearing on the question of whether the defendant’s status as a youthful trainee under the Holmes Act should be revoked.
All concurred.
MCLA § 750.248 (Stat Ana 1970 Cum Supp § 28.445).
MCLA § 762.11 et seq. (Stat Ann 1970 Cum Supp § 28.853[11] et seq.).
MCLA § 771.4 (Stat Ann 1954 Rev § 28.1134).
PA 1903, No 91, as amended by PA 1909, No 124.
TJS Const, Am 14.
Const 1963, art 1, § 2. | [
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Fitzgerald, J.
The present action arose as a result of the sale of certain real property situated in the city of Detroit. On November 1, 1967, plaintiff Harold Beznos acquired title to two pieces of property consisting of a single-family dwelling house located at 3330 Oakman Boulevard and an adjacent vacant lot.
On or about June 22, 1968, Charles W. Hill and Willa M. Hill, his wife, not parties to this action, offered to purchase the home from Beznos. The offer was made subject to the condition of obtaining an F.H.A.-insured mortgage on this property.
Approximately one month later, Shelton Alvin Martin and Vera Florence Martin, defendants in the present case, began negotiations with plaintiff for the purchase of the aforementioned vacant lot which was also adjacent to the Martin home on Oakman Boulevard. On July 25, 1968, an offer was made to purchase the vacant property for $3,300 and was duly accepted by plaintiff. Both parties understood and assumed that the defendants were purchasing only the vacant lot and no portion of the concrete drive which served plaintiff’s house and is the subject of this dispute.
Plaintiff conveyed the lot to the Martins on August 8, 1968. Subsequent to the conveyance, plaintiff discovered that the concrete driveway serving the house, which was to be sold to the Hills, encroached by two feet on the adjacent vacant lot. The defendants threatened the Hills with destruction of the concrete drive and the erection of a fence along the lot line, whereupon the Hills refused to close their purchase. Plaintiff sought a reconveyance of the two-foot strip and defendants demanded $1,500 for the deed. The prorated price of the two-foot strip based on the original purchase price was $146.66. Faced with the loss of a sale, plaintiff paid the amount demanded and brought action to recover. Defendants filed a motion for accelerated judgment, alleging that they had re-negotiated the sale of the particular lot and that plaintiff had elected not to rescind his contract, therefore barring any future claim.
The Court addresses itself to the charge that the trial court erred in granting accelerated judgment in that defendants’ motion was not a sufficient defense as would defeat plaintiff’s claim at that point in the proceedings. The motion was predicated upon GrCR 1963, 116.1(5), which states:
“The claim is barred because of release, payment, prior judgment, statute of frauds, infancy, or other disability of the moving party, or assignment or other disposition of the claim before commencement of the action.”
Defendant contends that Harold Beznos made no attempt to rescind the contract which was freely and voluntarily made, but in fact elected to ratify the agreement by entering upon negotiations to repurchase the disputed portion of the land. He avers that plaintiff’s claim is thereby barred because of release, ratification, and waiver, and that by authority of the court rule, supra, a proper defense was presented and accelerated judgment was in order. On the other hand, plaintiff takes the position that defendants failed to set forth any facts which would support the allegations made and that the “election” was a direct result of duress and compulsion.
A complete review of the facts in the instant ease does not lend credence to defendants’ contention that the transaction was entirely free and voluntary. Clearly, Harold Beznos was faced with the possible loss of a valuable bargain, had he not submitted to defendants’ demands. It is quite possible that these particular facts amount to a species of duress.
Admittedly, there is a question of fact, whether plaintiff “freely and voluntarily” entered the agreement. In Anderson v. Sanders (1968), 14 Mich App 58, citing Hodgson v. William Beaumont Hospital (1964), 373 Mich 184, this Court reversed an accelerated judgment stating:
“Permissible inquiry on a hearing pursuant to a motion for accelerated judgment does not include reconciling disputed fact questions where credibility is in issue, nor does it include fact finding except where the facts are such that no reasonable minds might disagree.”
An application of Anderson to the present controversy reveals that the facts were such that reasonable minds could disagree. The court took no testimony, in spite of the fact that a disputed issue surrounding duress and compulsion did exist.
While this Court does not comment on the substantive claims of duress and compulsion set before us, we do conclude that sufficient facts were at issue to necessitate taking of testimony. We therefore hold that the trial court erred in granting the accelerated judgment.
Reversed. Costs to appellants.
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Danhop, J.
Defendant was tried on a charge of assault with intent to commit murder. The jury found him guilty of a lesser included offense, assault with intent to do great bodily harm less than murder, MOLA § 750.84 (Stat Ann 1962 Rev § 28-.279). Defendant was sentenced to a term of nine to ten years in prison.
The complaining witnesses, two Detroit policemen, testified that on the evening of May 3, 1968, they were on patrol in the city of Detroit in an unmarked car when they observed defendant driving at a high rate of speed. They followed his car and pulled alongside when he stopped for a light. The officers testified that when they then ordered defendant to pull over he looked directly at them and then drove off. The officers were in uniform.
A high speed chase ensued, and defendant finally turned into a slag yard where his car came to a stop against a large slag heap. When the officers who had momentarily lost sight of defendant’s car spotted him, he was standing some 25 to 40 yards away with a shotgun at his shoulder pointed at the officers.
At this point one of the officers ducked down after which he heard what sounded like a shotgun blast. The officer testified that he then identified himself as a police officer and ordered defendant to drop his. gun. When defendant failed to do so, the same officer shot him with his revolver, wounding- him. Other .officers from the Detroit and Dearborn police departments arrived witbin minutes. Defendant was. searched and then taken to the hospital. A search of his car uncovered a small arsenal of weapons all of which were introduced as evidence at trial over the vigorous objection of defense counsel.
One of tbe Dearborn police officers testified that the shotgun allegedly used by defendant had a spent shell in it when examined at the scene of the incident. He further testified that he had detected a faint odor of powder when he first examined the weapon at the scene.
The sole witness in defendant’s behalf was the defendant himself. He testified that he did not know that the men who ordered him to pull over at the traffic light were police officers. He testified further that he first noticed they were police officers when he saw them at the slag yard. Defendant said that as sqon as he learned this he laid down his weapon, and that he never once fired the weapon before he was shot by the police.
On cross-examination the prosecution elicited the information that defendant had an extensive criminal record, and that on the date of the incident, he was an escapee from an Ohio jail.
On appeal defendant raises a number of questions, the principal one being -whether the trial court erred prejudicially by admitting into evidence two .22-calibre rifles, four boxes of .22-calibre bullets, a pair of binoculars, two shotgun shells, two screwdrivers, a homemade knife and other items, all of which were found in defendant’s automobile at the time of his arrest, when the information and facts testified to by the people’s witnesses charged defendant with assault with intent to kill and murder with a certain 20-gauge shotgun.
Apparently, there is a dearth of Michigan authority precisely in point on this question. However, the following quotation from a legal encyclopaedia is pertinent, 22A CJS, Criminal Law, § 712, pp 965-967:
“Weapons or other instruments which are in no way, or not sufficiently, connected with the crime, or concerning which there is insufficient evidence from which a jury might reasonably infer that they were used in the commission of the crime, are inadmissible to show that they were so used, even where they are connected with accused, and certainly where they are not connected with accused. However, a weapon or instrument found in the possession of accused or of his criminal associates which, although not identified as the one actually used, is similar in form and character thereto, or which, from the circumstances of the finding justifies an inference of the likelihood or possibility of its having been used, is admissible for the purpose of showing availability to accused of the means of committing the crime in the manner in which it is shown to have occurred, or for the purpose of illustration, or of showing preparation, or the state of mind or intent of accused. Moreover, weapons known or conceded not to have been used in the crime are admissible where they have some probative weight or where they constitute part of the picture.”
Considering the prosecution’s burden of proving intent in the crime charged and that on the facts of this case the weapons and other items constituted evidence of preparation and state of mind of the defendant, they were properly admitted into evidence. See People v. Machen (1894), 101 Mich 400, and People v. Becker (1942), 300 Mich 562.
However, this opinion should not be construed as authority that weapons not directly used in the crime charged would in all cases be admissible.
Defendant also argues that the search of his car without a warrant and the seizure of the weapons and other items was illegal and, therefore, the weapons and other items should not have been admitted into evidence. While defense counsel did object to the admission of these weapons and other items on the basis that they were not relevant or máterial, there was no objection based on illegal search and seizure. Therefore, this issue has not been preserved for appellate review. People v. Wilson (1967), 8 Mich App 651.
On appeal defendant also argues that the prosecution’s weapons expert was not properly qualified and, therefore, his testimony should not have been admitted. No objection to this testimony was made at the time and thus the question has not been preserved for review.
Other questions raised on appeal do not merit discussion. Clearly there was sufficient evidence to support the verdict and there was no objection by defense counsel to the jury instructions and so they are not properly before this Court for review, GCE 1963, 516.
Affirmed.
All concurred. | [
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Levin, P. J.
The question presented is whether the dismissal of a “no progress” case operates as an adjudication upon the merits and, thus, because of the doctrine of res judicata, blocks reinstitution of the action. We hold that such a dismissal does not operate as a meritorious adjudication, and that suit can be brought again.
Tlie plaintiff coninieucecl an action against the defendant by filing a complaint on June 13,1966; the defendant filed an answer and counterclaim, and the plaintiff replied. That action appeared on the no progress calendar and was dismissed for lack of progress on May 6, 1968.
The plaintiff commenced this action on September 19, 1968, asserting the same claims against the defendant set forth in the earlier filed complaint. The defendant moved for accelerated judgment, claiming that the no progress dismissal of the earlier action operated as an adjudication upon the merits barring the reassertion of the claims and now appeals, on leave granted, an order denying his motion for accelerated judgment.
GOB. 1963, 501.3 requires a circuit judge periodically to supervise the call in open court of all civil actions pending and undisposed of in which no steps or proceedings appear to have been taken within one year and permits a local rule to provide for notice by publication in place of the general call of the calendar in open court. This rule also provides that, “the court may direct the clerk to enter an order dismissing the action for want of prosecution.”
Local rule 7 of the Sixth Judicial Circuit (Oakland county) required the clerk monthly to publish a list of no progress cases in the Pontiac-Oakland County Legal News and provided that they shall be dismissed unless cause be shown “to the contrary.”
The May 6, 1968 journal of the circuit judge who dismissed the original action lists 44 cases for possible dismissal because of lack of progress, of which 7 were subsequently deleted by drawing a line through the captions and file numbers identifying them. No formal order dismissing plaintiff’s action was ever entered.
Putting aside, because neither briefed nor argued by the parties, the question whether a journal entry can function as an order, we address ourselves to the defendant’s contention that the no progress dismissal of the original action was an involuntary dismissal and, by reason of G-CR 1963, 504.2, that it operated as an adjudication upon the merits.
Rule 504.2 provides:
“For failure of the plaintiff to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. * * * Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, operates as an adjudication upon the merits.”
The defendant points out that a no progress dismissal (Rule 501.3) is a dismissal not provided in “this rule” (Rule 504) and contends that, because the “order” dismissing the plaintiff’s action did not specify that the dismissal would be without prejudice, the dismissal, by reason of Rule 504.2, operated as an adjudication upon the merits. The construction of Rule 504.2 urged by the defendant is literally plausible. It is not, however, consonant with our' understanding of the practice or the sense of Rules 504.2 and 501.3.
A great many eases are dismissed for lack of progress. No individual consideration is given to a particular case on a no progress dismissal list unless an attorney appears or files a motion asking that it be removed from the list. Rule 504.2 contemplates, however, that the circuit judge will exercise his judgment as to whether an involuntary dismissal shall operate as an adjudication upon the merits and that this be a particularized judgment made on the facts and merits of each case. Such individualized judgment simply does not take place when a case is dismissed for lack of progress with dozens of other cases.
No progress dismissals are generally handled ministerially, as is evidenced by the procedure following in this instance; the circuit judge did not consider the matter, he exercised no judgment, he did not attempt to determine whether there was any distinction or basis for differentiation between the antecedent of the present action and the several dozen other actions being dismissed at the same time.
If a defendant were to move for dismissal because of a lack of prosecution and an order of dismissal was entered, such an order would, no doubt, operate as an adjudication on the merits. But before entering such an order the court, presumably, would give individual consideration to the question whether the order should contain a “without prejudice” proviso. The procedure to be followed in such a case is not at all comparable to the general housecleaning by publication which takes place when large numbers of cases are dismissed for lack of progress -without any individualized consideration of whether the dismissal should be with prejudice.
Nor do we think, contrary to another of the defendant’s contentions, that we would he justified in inferring that the draftsmen of the 1963 revised judicature act and general court rules intended that no progress dismissals he with prejudice from their failure to retain in Rule 501.3 an express provision that such dismissals shall he “without prejudice” as was provided in the section of the former judicature act concerning dismissal of cases for lack of progress which was replaced by Rule 501.3. While this is a permissible inference, the words “without prejudice” may not have been retained simply because the concept that no progress dismissals are without prejudice was thought to he so well established that it was no longer necessary to have an express statement to that effect. We are inclined to the latter view; we think that if such a sweeping-change had been intended it would have been clearly highlighted and the attention of the profession directed to it long before now.
We also observe that cases dismissed for lack of progress are frequently “reinstated.” If a no progress dismissal operated as an adjudication on the merits, then an action so dismissed conld not be reinstated "without a court rule authorizing reinstatement ; we are aware of none except the general r>ower which the court enjoys under GOB 1963, 528.3 to “relieve a party or his legal representative from a. final judgment, order or proceeding for * * * (6) any other reason justifying relief from the operation of the judgment.” An order reinstating a case dismissed for lack of progress can, indeed, be viewed as relief from an earlier dismissal order. But so, too,- can the trial judge’s order in this case denying the defendant’s motion for accelerated judgment. Whether termed an order of reinstatement or an order denying accelerated judgment, the function and .effect of the order is the same: it permits the plaintiff to obtain a hearing on the merits of his claim without regard to the no progress dismissal.
The defendant argues that he will be prejudiced by entertainment of this action because the statute of. limitations may have run on a portion of his counterclaims. It appears that the plaintiff may have permitted the original action to be dismissed for lack'of progress in- order to bar defendant’s counterclaims.-. We see-no need to decide whether counterclaims, which could have been asserted in the plaintiff’s original action would be 'barred because o.f the passage of time. We note, however, that lipón commencement of the actions and service of copies of the summonses and complaints upon the..defendant, the statute of limitations was. tolled; it did not run while the actions were pending. MOLA § 600.5856 (Stat Ann 1962 Rev § 27A.5856).
Affirmed. Costs to plaintiff.
All concurred.
Under present Sixth Judicial Circuit loeal rule 9, which did not become effective until after the dismissal of the original aetion filed in this ease, written notice that a case is on a no-progress calendar is required to be given to attorneys of record whose business addresses are located outside the county.
In this case the business address of the defendant’s attorney was in Wayne county; the business address of the plaintiff’s attorney was in Oakland county. The clerk of the circuit court mailed to the attorney for the defendant written notice that the aetion was on the no progress calendar. It does not appear that such a notice was sent to the attorney for the plaintiff, but he conceded during the oral argument in our Court that he was aware that the aetion was on the no progress calendar. The notice given the defendant’s attorney in this ease is probably attributable to an early start-up of the notice-giving machinery shortly before the May 13, 1968 effective date of loeal rule 9.
Local rule 7; this rule was subsequently amended and is now rule 9.
In this connection see Hartman v. Roberts-Walby Enterprises, Inc. (1968), 380 Mich 105, which appears to hold that journal entries denying motions to set aside a default and for rehearing do not function as entered orders for purposes of computing the time within which appeal may be taken as of right. In that case a journal entry was noted on July 11, 1966 of the judge’s decision to deny a motion to set aside default. An order denying the motion was not entered until August 4, 1966; prior to the entry of that order, but after the journal entry of July 11, 1966, a motion for rehearing was filed on July 18, 1966. An order denying rehearing was entered October 10, 1966. It was held that the time for appeal began to run on October 10, 1966. See, also. People v. Norman (1968), 9 Mich App 647, 650, 651.
Cf. Covington Mutual Insurance Company v. Copeland (1969), 382 Mich 109, 111,
Cf. Rose v. Rose (1968), 10 Mich App 233.
Rule 501.3 is modeled on rule 41(b) of the Federal Buies of Civil Procedure. Buie 41(b), unlike the Michigan rule, expressly provides that a defendant may move for dismissal because of a failure to prosecute. There is no provision for general houseeleaning no progress dismissals in the Federal Buies of Civil Procedure, but it appears, upon an examination of the Federal cases, that some district courts have promulgated local rules providing for such dismissals.
While it has been held that a judge enjoys the inherent power to dismiss a case for lack of progress and that he may do so without notice (Link v. Wabash R. Co. [1962], 370 US 626 [82 S Ct 1386, 8 L Ed 2d 734], rehearing denied 371 US 873 [83 S Ct 115, 9 L Ed 2d 112]; see, also, Durham v. Florida E. C. R. Co. [CA 5, 1967], 385 F2d 366, where it was found that this power was abused), we found no Federal ease deciding -whether a general housecleaning dismissal for lack of progress under a loeal district court rule, not specifying whether it is with or without prejudice, would be deemed a with-prejudiee dismissal under the “any dismissal” provision of Buie 41(b). That being the structure of the Federal Buies of Civil Procedure and the state of the Federal ease law today, it is greatly to be doubted whether the revisers of our court rules and judicature act had in mind, in the early 1960s when this work was being done, the kind of case we now have before us today when they copied into Bule 501.3 this language of Buie 41(b). Cf. Zaroff v. Holmes (1967), 127 App DC 1 (379 F2d 875, 877), holding that a local rule providing for dismissal of an aetion in the event of counsel’s failure to appear at a pretrial conference whieh was silent as to whether such a dismissal would be with prejudice would be interpreted as not intending that the dismissal be with prejudice; the court observed that if the local rule was “to have the effect claimed for it, it should speak much more clearly to that end than it does now.”
Furthermore, it is to be doubted whether a local rule could deprive a judge of Ms discretion under Rule 501.3 to make his order of dismissal one without prejudice and under Rule 528.3 to relieve a party from the with-prejudiee aspect of a dismissal order. Discretion is eoniided to judges in those cases where it is impracticable to frame an absolute rule because disparate factors must be weighed. See Noonan v. Cunard Steamship Co., Ltd. (CA 2, 1967), 375 F2d 69, 71; cf. Zaroff v. Holmes, supra, p 878. Also cf. Link v. Wabash E. Co., supra, p 632, discussing the escape hatch of Rule 60(b) on whieh our Rule 528.3 is based.
CL 1948, § 618.2 (Stat Ann § 27.982).
The Oakland circuit court rules do not contain a specific provision for reinstatement. It is understood, however, that cases dismissed for lack of progress are frequently reinstated in that circuit. The rules of the Wayne circuit court expressly provide for reinstatement but impose a time limit; a case may not be reinstated after a year has elapsed from the date of its dismissal. (Wayne Circuit Court Rule 17.6 [Honigman & Hawkins, Mich Court Rules (1969 ed), pp 563, 564]). See Del Prado Motel, Inc. v. Charles J. Rogers, Inc. (1968), 14 Mich App 728.
We Rave considered tie authors’ comment in 2 Honigman & Hawkins, Mich Court Rules Annotated (2d ed), p 332, that Rule 504.2 “may apply * , * * [to a] failure to prosecute, as provided by sub-rule 501.3.” (Emphasis supplied.) We decline to adopt this suggestion-which does not appear to have taken into account the considerations to which we have alluded.
The accompanying committee comment provides (MCLA § 600-.5856, p 945) :
“In the event of the dismissal, on some ground other than on the merits (as for example — lack of jurisdiction over the subject matter) of an action in which jurisdiction over the defendant is acquired, the period of time from the time of service or the acquisition of jurisdiction over the defendant until dismissal will not count as a part of the time of limitation, for during such time the statute has been tolled.”
See, also, 34 Am Jur, Limitations of Actions, § 411 et seq. and 53 CJS, Limitations of Actions, § 25, p 962, concerning estoppel to rely upon the statute of limitations. Cf. Strauss v. Douglas Aircraft Co. (CA 2, 1968), 404 F2d 1152.
See, also, MCLA § 600.5283 (Stat Ann 1962 Rev § 27A.5283) excepting certain counterclaims from the operation of the periods of limitations. | [
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Per Curiam.
Defendants’ motions for summary judgment were granted below and a judgment dismissing plaintiffs’ action with prejudice was entered. Plaintiffs appeal.
Plaintiffs are former employees of defendant Copco Steel and members of defendant union. September 15,1950, Copco Steel and the union, as the collective bargaining representative of plaintiffs and others similarly situated, entered into an agreement which, among other things, established a pension plan for the employees of Copco. The plan required Copco to contribute 7-1/2 cents per hour for each hour worked by the employees included in the plan. These contributions were deposited in a trust fund created to carry out the purpose of the pension plan. Defendant bank was the trustee.
The purpose of the pension plan agreement was stated as:
“The object of the pension plan set forth herein is to provide pension benefits for employees (as herein defined) of the Copco Steel and Engineering Company. The benefits under the plan are to supplement those provided under the Federal Social Security-Act, as amended.”
The agreement specifically provided that “there shall be no contributions under the plan by any employee”, and
“No employee prior to his retirement under conditions of eligibility for pension benefits shall have any right or interest in or to any portion of any funds which may be paid into any trust fund established for the purpose of paying pensions and no employee or pensioner shall have any right to pension benefits except to the extent provided in this plan.”
The agreement of September 15, 1950 has been amended and extended by supplemental agreements subsequent to its inception date, and the plan is in effect to date. Its purpose, its prohibition of contributions by employees and its restriction of employee right or interest in the pension fund to pension benefits has not been altered.
Plaintiffs’ action in chancery (filed March 2,1962) sought the aid of equity to determine their rights in the assets of the fund and to decree distribution of their shares therein and for other incidental relief.
In granting summary judgment, the trial court found “that there is no genuine issue as to any material fact”. G-CR 1963, 117.2(3). In context with the written opinion filed by the trial judge, it is implicit in this finding that plaintiffs sought relief contrary to the clear and unequivocal provisions of the pension plan agreement. This they cannot do. George v. Haber (1955), 343 Mich 218; Borngesser v. United Dairy Workers Pension Fund Committee (1965), 375 Mich 697.
Affirmed with costs to defendants. | [
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Williams, J.
We are presented with three issues. First is whether there is a delivery under the Michigan Controlled Substances Act (1971 PA 196, MCL 335.341; MSA 18.1070[41] when a physician gives a prescription or dispenses a box of pills. Second is whether a licensed physician can be prosecuted under MCL 335.341(1)(b); MSA 18.1070(41)(1)(b), for unlawful delivery of a controlled substance. The third is whether as a matter of law the defense of entrapment was established.
The appellant, Dr. Alford, was charged with two counts of unlawful delivery of a controlled substance. The first count was for giving prescriptions for 120 capsules containing amphetamines to an undercover police officer in the names of persons never examined by the doctor. The second count was for actually giving 103 capsules containing barbiturates to the same undercover police officer.
The trial court granted a pretrial motion to quash the information finding (1) physicians dispensing and/or prescribing controlled substances are not subject to prosecution under MCL 335.341(l)(b); MSA 18.1070(41)(1)(b) and (2) the appellant was entrapped as a matter of law. The Court of Appeals reversed on both grounds, People v Alford, 73 Mich App 604; 251 NW2d 314 (1977).
In People v Kerwin, 56 Mich App 483; 224 NW2d 113 (1974), a panel of the Court of Appeals held physicians were not subject to prosecution under MCL 335.341(1)(b); MSA 18.1070(41)(1)(b). The opposite conclusion was reached by the Court in Alford.
We granted leave to appeal August 31, 1977, 401 Mich 804 (1977), to resolve a conflict in the Court of Appeals.
We agree with the holding of the Court of Appeals in Alford. Physicians not acting in good faith "in the course of professional practice or research” are prosecutable under MCL 335.341(1); MSA 18.1070(41)(1). We also agree with their determination that the defense of entrapment was not established as a matter of law.
We affirm the Court of Appeals in Alford.
I. Facts
On March 12, 1973, Justin Kukalis, an officer of the Department of State Police, Intelligence Division, Diversion Investigation Unit, visited Dr. Alford at his office. Kukalis posed as a patient and gave the name James Kase. He complained of being overweight. The doctor weighed him and took his blood pressure by placing the blood pressure cuff over his jacket on his arm. The doctor gave him medication (92 small white and 30 small flat pink double-scored tablets) and a prescription for 30 amphetamine capsules. He did not tell him what the medication was, but gave him directions on dosage, one tablet a day. The doctor told him to return in two weeks. Officer Kukalis paid for the visit.
As noted by the trial court:
"Kukalis returned on approximately eight or nine occasions thereafter, and on these occasions he was not given a further medical examination, although on some of the return visits he was weighed and on others he was asked about his weight.
"On these occasions when Kukalis returned to Dr. Alford’s office, Dr. Alford usually handed Kukalis drugs containing amphetamines. On some occasions he handed Kukalis drugs containing barbiturates, and on some of these occasions he wrote prescriptions for Kukalis for amphetamine drugs.”
On June 1, 1973, Kukalis went to the doctor’s office. The doctor informed Kukalis he had no amphetamines available and that he did not like writing prescriptions so often. The doctor then wrote a prescription for Kukalis for 30 amphetamine capsules. The doctor asked who else needed a prescription. Kukalis supplied the names and addresses of fictitious people, Neil Harris and Karen Kase. The doctor wrote prescriptions for them. Kukalis then supplied the name Donald Hollis and the doctor supplied an address as he wrote the prescription. Kukalis also requested and received a small white box of red capsules, 59, and some blue and clear capsules, 43.
The four prescriptions received by Kukalis from Dr. Alford on June 1, 1973 were filled by a drug inspector in the Department of Licensing and Regulation assigned to the Diversion Investigation Unit. The drug inspector was a pharmacist. The contents of each prescription were analyzed by the Michigan State Police Scientific Laboratory. Each prescription was for amphetamine sulphate, 30 capsules, a schedule 2 controlled substance.
The medication directly received by Kukalis on June 1, 1973 was also analyzed by the Michigan State Police Scientific Laboratory. The 59 orange capsules contained secobarbital, a schedule 3 controlled substance. The 44 blue and clear capsules contained amobarbital, also a schedule 3 controlled substance.
Based on the drugs received on June 1, 1973, a two-count information was filed against Dr. Alford charging that he (1) "did unlawfully deliver a controlled substance, to-wit: 120 capsules containing amphetamine, contrary to the provisions of MCL 335.341(l)(b);” and (2) "did unlawfully deliver a controlled substance, to-wit: 103 capsules containing barbituates [sic], contrary to the provisions of MCL 335.341(1)(b)”.
After the preliminary examination the defendant was bound over for trial on both counts. The defendant filed a motion to quash the information which was granted by the trial court. The judge held that writing prescriptions was not a delivery or constructive delivery within the meaning of MCL 335.341(l)(b); MSA 18.1070(41)(1)(b). The judge also held:
"that this statute either frees licensed physicians, without qualification, to hand out barbiturate drugs, or it permits them to hand out such drugs to people who come, to their offices for professional consultation regardless of whether the physicians’ conduct falls short of the standards of skill, care and ethics customarily employed by their co-professionals.”
In conclusion the judge found:
"as a matter of law, that the defendant was entrapped.”
The Court of Appeals reversed the decision of the trial court holding
"that a practitioner is not exempt from prosecution under MCL 335.341(1); MSA 18.1070(41)(1), merely because of his registered status. The practitioner’s activi ties are only protected to the extent they are performed within the course of professional practice.” 73 Mich App 604, 614.
The Court also found that
"[t]he facts in the case at bar do not indicate the government conduct was of such a nature as to give rise to a finding of entrapment.” 73 Mich App 604, 615.
II. Applicable Portions of the Controlled Substances Act of 1971
MCL 335.341; MSA 18.1070(41) establishes the basic penalties for violation of the Controlled Substances Act of 1971 and provides in pertinent part:
"(1) Except as authorized by this act, it is unlawful for any person to manufacture, deliver or possess with intent to manufacture or deliver, a controlled substance. Any person who violates this subsection with respect to:
"(b) Any other controlled substance classified in schedules 1, 2 or 3, except marihuana, is guilty of a felony and upon conviction may be imprisoned for not more than 7 years or fined not more than $5,000.00, or both.”
Specific definitions are provided for the terms used in this section:
" 'Person’ means an individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity.” MCL 335.307(1); MSA 18.1070(7)(1).
" 'Deliver’ or 'delivery’ means the actual, constructive or attempted transfer from 1 person to another of a controlled substance, whether or not there is an agency relationship.” MCL 335.304(1); MSA 18.1070(4)(1).
These provisions must be considered in light of other sections relating to physicians:
" 'Practitioner’ means:
"(a) A physician, dentist, veterinarian or pharmacist as defined in subdivisions (o), (p), (q) and (w) of section 1 of Act No. 151 of the Public Acts of 1962, as amended, being section 338.1101 of the Compiled Laws of 1948, scientific investigator as defined by rule of the administrator, or other person licensed, registered or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled substance in the course of professional practice or research in this state.” (Emphasis added.) MCL 335.307(3); MSA 18.1070(7)(3).
" 'Dispense’ means to deliver or issue a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering or compounding necessary to prepare the substance for that delivery or issuance.” MCL 335.304(2); MSA 18.1070(4X2).
"(1) Every person who manufactures, distributes, prescribes or dispenses any controlled substance within this state or who proposes to engage in the manufacture, distribution, prescribing or dispensing of any controlled substance within this state, shall obtain annually a registration issued by the administrator in accordance with its rules.
"(2) Persons registered by the administrator under this act to manufacture, distribute, prescribe, dispense or conduct research with controlled substances may possess, manufacture, distribute, prescribe, dispense or conduct research with those substances to the extent authorized by their registration and in conformity with the other provisions of this chapter.” MCL 335.332; MSA 18.1070(32).
These sections provide the focal point of our analysis.
III. "Delivery” Under the Act
Counts 1 and 2 charged defendant "did unlawfully deliver a controlled substance”. For Count 1, the proofs were that defendant wrote prescriptions for Officer Kukalis and for three fictitious people, with the defendant supplying a fictitious address for the last one. For Count 2, the proofs were that defendant handed or dispensed to Officer Kukalis a box of pills. %
Therefore two questions relating to delivery exist: A. Is prescribing delivery? B. Is handing/dispensing delivery?
A. Prescribing
MCL 335.304(1); MSA 18.1070(4X1), as noted above, reads in part: " 'Deliver’ * * * means the actual, constructive or attempted transfer * * * of a controlled substance”. MCL 335.304(2); MSA 18.1070(4)(2), as noted above, reads in part: " 'Dispense’ means to deliver * * * by or pursuant to the lawful order of a practitioner, including the prescribing * * As a consequence, prescribing is included in the definition of deliver.
B. Handing/Dispensing
The two statutory definitions examined in A. Prescribing also demonstrate that handing or dis pensing pills is included within the definition of "deliver”.
IV. Application to Physicians
The statute prohibits "any person” from delivering a controlled substance. This blanket prohibition by itself would prevent physicians from dispensing any medication.
The statutory restriction on the delivery of controlled substances is clear. The term "person” as defined by the statute does not exclude physicians or any other group. We find this categorical approach consistent with the legislative desire to establish the most comprehensive system of controls to regulate the use and abuse of controlled substances.
Physicians, however, do possess a limited exemption from prosecution in MCL 335.332(2); MSA 18.1070(32)(2) which states:
"Persons registered by the administrator under this act to manufacture, distribute, prescribe, dispense or conduct research with controlled substances may possess, manufacture, distribute, prescribe, dispense or conduct research with those substances to the extent authorized by their registration and in conformity with the other provisions of this chapter.”
To maintain their exemption they must be in compliance with their registration under the act and conform to the other provisions of the act.
But MCL 335.307(3)(a); MSA 18.1070(7)(3)(a) provides a limitation on their license to dispense controlled substances. This section defines a "practitioner” to include:
"A physician, * * * or other person licensed, registered or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled substance in the course of professional practice or research in this state.” (Emphasis added.)
Therefore physicians must act "in the course of professional practice or research” to retain their limited exemption.
We find support for our interpretation of the Controlled Substances Act of 1971 in United States v Moore, 423 US 122; 96 S Ct 335; 46 L Ed 2d 333 (1975). In Moore a licensed physician registered under the Federal Controlled Substances Act, 21 USC 801 et seq., was convicted of a violation of 21 USC 841(a)(1) which made it:
"unlawful for any person knowingly or intentionally— * * * to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance;”.
Our act substantially parallels the Federal Controlled Substances Act, 21 USC 801 et seq.
The United States Supreme Court extensively analyzed the Federal Controlled Substances Act and its legislative history and held:
"that registered physicians can be prosecuted under § 841 when their activities fall , outside the usual course of professional practice.” 423 US 122, 124.
An interesting question raised by defendant is whether he can be prosecuted under MCL 335.341; MSA 18.1070(41) in light of MCL 335.342; MSA 18.1070(42) which provides:
"(1) It is unlawful for any person:
"(a) Who is subject to chapter 3, to distribute, prescribe or dispense a controlled substance in violation of section 38.
"(b) Who is a registrant, to manufacture a controlled substance not authorized by his registration, or to distribute, prescribe or dispense a controlled substance not authorized by his registration to another registrant or other authorized person, except as authorized by rules promulgated by the administrator.
"(2) Any person who violates this section may be punished by a civil fine of not more than $25,000.00 in a proceeding in the circuit court. However, if the violation is prosecuted by a criminal indictment which alleges that the violation was committed knowingly or intentionally, and the trier of the fact specifically finds that the violation was committed knowingly or intentionally, such person is guilty of a misdemeanor and upon conviction may be imprisoned for not more than 2 years or fined not more than $25,000.00, or both.”
Defendant contends that MCL 335.342; MSA 18.1070(42) establishes a separate and distinct penal system for persons registered under the act.
This very point was considered in Moore because 21 USC 842 is comparable to MCL 335.342; MSA 18.1070(42). Moore was decided adversely to defendant.
"Respondent nonetheless contends that §§ 841 and 822(b) must be interpreted in light of a congressional intent to set up two separate and distinct penalty systems: Persons not registered under the Act are to be punished under § 841, while those who are registered are to be subject only to the sanctions of §§ 842 and 843. The latter two sections, the argument goes, establish modest penalties which are the sole sanctions in a system of strict administrative regulation of registrants.
"The operative language of those sections provides no real support for the proposition that Congress intended to establish two mutually exclusive systems. It is true that the term 'registrants’ is used in §§842 and 843, and not in § 841. But this is of limited significance. All three sections provide that '[i]t shall be unlawful for any person * * * [to commit the proscribed acts].’ Two of the eight subsections of § 842(a), one of the five subsections of § 843(a) and § 842(b) further qualify 'any person’ with 'who is a registrant.’ The other subsections of §§ 842 and 843 are not so limited. In context, 'registrant’ is merely a limiting term, indicating that the only 'persons’ who are subject to these subsections are 'registrants.’ There is no indication that 'persons’ means 'nonregistrants’ when introducing the other subsections.” 423 US 122, 133-134.
The United States Supreme Court decision in Moore has been used by two jurisdictions to support a finding that physicians are subject to prosecution for violations similar to those in the instant case.
In State v Vaccaro, 142 NJ Super 167, 173; 361 A2d 47 (1976), the Court stated:
"A physician who is honest and ethical, and dispenses the prohibited drugs in a good faith effort to treat and cure patients, has no fear of the criminal sanctions of the statute. However, his mere status as a licensed physician who has been properly registered as a dispenser of the prohibited drugs does not give him the blanket right to abuse his authority and profession by dispensing drugs without relation to his sworn professional obligations.”
In State v Fearing, 30 Md App 134; 351 A2d 896 (1976), the Court reached the same conclusion.
We hold that physicians can dispense controlled substances only
"to the extent authorized by their registration and in conformity with the other provisions of this chapter.” MCL 335.332(2); MSA 18.1070(32)(2).
A physician dispensing controlled substances not in the course of professional practice or research can be prosecuted for unlawful delivery of a controlled substance. Whether a physician or any other person listed in MCL 335.307(3)(a); MSA 18.1070(7)(3)(a) is acting in good faith in the course of professional practice or research is a question of fact.
V. Entrapment
This Court in People v Turner, 390 Mich 7; 210 NW2d 336 (1973), adopted the objective test for entrapment articulated by Justice Stewart’s dissenting opinion in United States v Russell, 411 US 423; 93 S Ct 1637; 36 L Ed 2d 366 (1973). This test focuses on
"whether the actions of the police were so reprehensible under the circumstances, that the Court should refuse, as a matter of public policy, to permit a conviction to stand.” 390 Mich 7, 22.
The adoption of the objective standard does not automatically preclude the use of undercover agents, but only conduct so reprehensible that it cannot be condoned by the judicial system. After discussing the objective standard of entrapment, Justice Stewart noted in his dissent in Russell:
"This does not mean, of course, that the Government’s use of undercover activity, strategy, or deception is necessarily unlawful. Lewis v United States, 385 US 206, 208-209 [87 S Ct 424; 17 L Ed 2d 312] (1966). Indeed, many crimes, especially so-called victimless crimes, could not otherwise be detected. Thus, government agents may engage in conduct that is likely, when objectively considered, to afford a person ready and willing to commit the crime an opportunity to do so. Osborn v United States, 385 US 323, 331-332 [87 S Ct 429; 17 L Ed 2d 394] (1966). See also Sherman v United States [356 US 369, 383-384; 78 S Ct 819; 2 L Ed 2d 848 (1958)]. (Frankfurter, J., concurring).” 411 US 423, 445.
In People v D’Angelo, 401 Mich 167; 257 NW2d 655 (1977), we made it clear that
"[t]he policy considerations which moved us to adopt the objective test of entrapment compel with equal force the conclusion that the judge and not the jury must determine its existence. The thesis is that law enforcement conduct which essentially manufactures crime is a corruptive use of governmental authority which, when used to obtain a conviction, taints the judiciary which tolerates its use. It is a practice which relies for its success upon judicial indifference, if not approval, and it must be deterred. Its deterrence is a duty which transcends the determination of guilt or innocence in a given case and stands ultimately as the responsibility of an incorruptible judiciary.” 401 Mich 167, 173-174.
In D’Angelo we also defined the burden of proof required and the standard to be used on review:
"We hold therefore that the defendant shall have the burden of proving the claim of entrapment by a preponderance of the evidence.
"The trial court’s finding will be subject to appellate review under the clearly erroneous standard.” 401 Mich 167, 183.
Defendant in this case failed to make a case of entrapment. Officer Kukalis did not attempt to create any special friendship with the doctor to facilitate a delivery of drugs. He did not cajole or induce the doctor to give him drugs. Officer Kukalis merely presented himself at the doctor’s office and asked for drugs, which he received. The conduct of the police in this case certainly did not approach the extreme situation we viewed in Turner. The undercover police officer in Turner worked for three years to establish a friendship with the defendant and then manufactured sad stories to obtain his sympathy.
The factual situation presented in the instant case does not reveal actions of the police so reprehensible that they should be excluded from the judicial administration of criminal justice.
We find as a matter of law that defendant was not entrapped.
V. Conclusion
We hold physicians are subject to prosecution under MCL 335.341; MSA 18.1070(41) for unlawful delivery of a controlled substance when they are not within the authorization granted by their registration or in conformity with the other provisions of the act. A physician not acting in good faith in the course of professional practice or research is not in conformity with the other provisions of the act.
We find the defense of entrapment was not established.
The decision of the Court of Appeals is affirmed.
Coleman, C.J., and Fitzgerald and Ryan, JJ., concurred with Williams, J.
When the doctor gave Officer Kukalis medication he usually poured the pills into his own hand and then into a small packet or box. He did not count the pills. The number of pills supplied was taken from the testimony of Officer Kukalis.
Officer Kukalis paid for all subsequent visits to Dr. Alford.
The Commissioners’ Note to the Uniform Controlled Substances Act, § 401, the counterpart to our MCL 335.341; MSA 18.1070(41) states:
"The term 'delivery’ as used in this Section is intended to include both dispensing and distribution as they are defined in Section 101.” 9 ULA, Matrimonial, Family and Health Laws, Master Edition, p 267.
Our definition of dispense, MCL 335.304(2); MSA 18.1070(4)(2) parallels the Uniform Controlled Substances Act, § 101(g).
MCL 335.307(1); MSA 18.1070(7)(1).
Compare this language with MCL 335.341; MSA 18.1070(41):
"[I]t is unlawful for any person to manufacture, deliver or possess with intent to manufacture or deliver, a controlled substance.”
21 USC 841 includes the word "dispense” and the Michigan section does not. But Michigan follows the Uniform Controlled Substances Act which considers dispensing a part of delivery. See footnote 3.
The Federal act was the first major overhaul of drug laws to occur in 20 years. It provided the impetus for the adoption of the Uniform Controlled Substances Act in some form by 45 jurisdictions including Michigan. The Commissioners’ Prefatory Note to the Uniform Controlled Substances Act states:
"This Uniform Act was drafted to achieve uniformity between the laws of the several States and those of the Federal government. It has been designed to complement the new Federal narcotic and dangerous drug legislation and provide an interlocking trellis of Federal and State law to enable government at all levels to control more effectively the drug abuse problem.” 9 ULA, p 146.
In Moore the United States Supreme Court noted that:
"The jury was instructed that Dr. Moore could not be convicted if he merely made 'an honest effort’ to prescribe for detoxification in compliance with an accepted standard of medical practice. App. 124.” 423 US 122, 142, fn 20 (emphasis added).
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Levin, J.
In these consolidated cases the workers had arteriosclerotic heart disease. Kostamo and Bullard had heart attacks and died. Jarman had a heart attack and lived. Fiszer and Hannula offered expert testimony that they had suffered heart attacks but the Worker’s Compensation Appeal Board found that they had not.
The WCAB denied compensation to all the claimants except Jarman who, it found, had suffered work-related heart damage and disability. We affirm, except in Kostamo, which we remand for further proceedings.
I
A
In Fiszer and Hannula, the issue was whether they had suffered heart damage. The WCAB found that they had not and, therefore, did not reach the question whether the claimed heart damage was work-related.
The workers’ compensation law does not provide compensation for a person afflicted by an illness or disease not caused or aggravated by his work or working conditions. Nor is a different result required because debility has progressed to the point where the worker cannot work without pain or injury. Accordingly, compensation cannot be awarded because the worker may suffer heart damage which would be work-related if he continued to work. Unless the work has accelerated or aggravated the illness, disease or deterioration and, thus, contributed to it, or the work, coupled with the illness, disease or deterioration, in fact causes an injury, compensation is not payable.
Arteriosclerosis is an ordinary disease of life which is not caused by work or aggravated by the stress of work. However, stress that would not adversely affect a person who does not have arteriosclerosis may cause a person who has that disease to have a heart attack.
The WCAB found that Fiszer and Hannula had not suffered heart damage. Those findings are supported in the evidence. Therefore, whatever the stress of the jobs, there was no injury. Since stress does not aggravate arteriosclerosis, the WCAB decisions denying them compensation must be affirmed. Although there is a causal relationship between the underlying disability, arteriosclerosis, and Fiszer’s and Hannula’s inability to continue working, that disability was not caused and could not have been aggravated by their employment.
B
In Kostamo, Bullard and Jarman, where the workers had heart attacks, the issue was whether the work was a cause of the heart damage. The WCAB found that it was a cause in Jarman but not in Kostamo and Bullard.
In Kostamo, the WCAB adopted the expert testimony offered by the employer that Kostamo’s heart attack was "inevitable”. In Bullard, it found that there was no evidence that the attack was caused by stress. In Jarman, where it concluded that there was a compensable injury, it found that there was evidence of stress in the employment and adopted the expert testimony offered by Jar-man relating the stress to his heart damage.
We affirm in Jarman because there was evidence of job stress and Jarman’s expert witness related the stress to the heart damage. The WCAB’s opinion and findings are detailed and not conclusory.
In Bullard, no evidence of stress or of the circumstances under which he worked was offered. The expert witness for Bullard’s widow assumed that there was stress and gave his opinion based upon such assumptions. There being no evidence that in fact there was stress or of its nature, he could not relate his opinion to actual job stress. The WCAB’s conclusion that there was a failure to prove a work-related injury must be affirmed.
C
The WCAB’s sketchy and conclusory opinion adopting the expert testimony offered by the employer that Kostamo’s heart attack was inevitable raises as many questions as it answers, and is so inadequate that we remand for further proceedings and findings.
While a heart attack may be inevitable in the sense that the victim will some day have a heart attack, such a statement begs the question whether job stress caused the attack to occur when it did or aggravated the attack and the extent of damage. Although workers’ compensation is not payable for the ordinary diseases and infirmities of life, it is payable for work-related acceleration and aggravation of such diseases and infirmities.
Doctors look for the etiological or medical cause; lawyers look for the legal cause. Generalities, such as "inevitable”, which may express no more than the medical view of causation, do not assist a trier of fact or reviewing court in deciding whether there is legal causation such that compensation is payable.
In the present state of medical knowledge, we know that stress can cause a heart attack, and that persons who have arteriosclerosis are more likely to suffer heart attacks as a result of stress than those who do not. The stresses that may cause attacks include anxiety, anger, fear, exhilaration, fatigue, and the environment (air, heat, cold).
We know also that is not possible to determine medically whether particular stress caused a particular injury. Nevertheless compensation may be awarded based on an assessment of the probabilities in light of the background factual circumstances and any opinion testimony. Opinions tentatively expressed may not on that account be discounted. The certainty, or puffery, with which experts express their opinions may mask differing understandings of the factual background and views regarding causation. The answer is to be found in careful scrutiny of the factual background and not in terminology and emphasis. Nor may preclusive effect be given to medical testimony.
Where the issue, as in Kostamo, Jarman and Bullard, is whether job stress caused the injury, there are two inquiries, one factual and the other judgmental.
The factual inquiry concerns the working and other conditions of the worker’s life claimed to constitute the stress that assertedly led to the heart attack. The judgmental question is whether the asserted stress did cause the heart attack.
The factual question clearly does not require medical testimony. Anyone familiar with the facts can state them. In Kostamo and Jarman there was testimony of factual circumstances indicating stress, while in Bullard none was offered.
Nor is the judgmental question entirely the province of the medical profession. The trier of facts is permitted to draw natural inferences from all the evidence and testimony, lay and medical, in deciding whether there is the requisite relationship between the asserted stress and the claimed heart attack.
II
In Kostamo and Jarman the factual background regarding the asserted stress was fully developed, while in Bullard it was not:
A
Onnie T. Kostamo, 62 years old, worked the night shift (approximately 11:30 p.m. to 7:30 a.m.) for the Marquette Iron Mining Company, which had employed him for more than 20 years. His job was to maintain the kiln discharge area.
Kostamo’s primary duty was to remove chunks of iron ore which missed the storage hopper as they dropped from the kiln. Failure to keep the area clear would require the shut-down of operations. In removing the chunks, which weighed up to several hundred pounds, Kostamo operated a tractor-shovel.
During the occasional periods when no chunks were dropping out of the kiln Kostamo was responsible for hosing down the floor and emptying dust valves on the cooler.
Kostamo’s area of responsibility was a room approximately 10 X 15 feet adjacent to the kiln. The atmosphere of the room was hot and dusty (sufficiently dusty to require a shower before leav ing work). Small, hot pellets occasionally fell from the kiln striking Kostamo.
Kostamo arrived at work for the night shift on May 20, 1968 in apparent good health. Although Kostamo had arteriosclerosis, it was undetected at the time. At around 1 a.m. Kostamo complained of not feeling well. Kostamo stated that he had pains in the chest and down the left arm as well as difficulty breathing. Nevertheless, after resting briefly, Kostamo returned to work. At 4 a.m., Kostamo again suffered the same physical distress but returned to work. Finally, at 6 a.m., Kostamo suffered another episode of distress. Incapable of continuing work, Kostamo was driven to a hospital in his car. Upon arrival at the hospital, Kostamo could walk under his own power but was incapable of signing himself in. He died in the hospital 12 days later on June 2, 1968 of an apparent heart attack.
B
Jack Jarman was a truck driver and delivery man for the Atlas Supply Co. In the early morning hours of December 30, 1972, while at home, Jar-man suffered severe pain in the chest. He asserts that the myocardial infarction which disabled him and prevents his return to full-time strenuous work was a result of the mental and physical strain of his employment.
On Wednesday, December 27th, Jarman had worked 19 hours delivering bags of material to drilling sites. The delivery involved loading and unloading, with another employee, at least in part by hand, bags weighing from 30 to 100 pounds. Although he returned home at 3 a.m. on December 28th, he resumed work Thursday morning at 8 a.m. and worked eight hours, again loading and unloading. On Friday, Jarman worked nine hours performing similar tasks.
Jarman testified that as the senior employee he felt responsible for the efficient operation of the yard. He frequently was pressed into duty when other employees had failed to complete their tasks. The nature of the business required that he be on call 24 hours a day, seven days a week. The seriousness with which Jarman regarded his responsibility was corroborated by Mrs. Jarman’s testimony, who stated that he became extremely distressed when operations did not proceed smoothly. This was further supported by the testimony of George Clapp, manager of Atlas Supply Co.
C
Clarence Bullard died while driving a truck for defendant Copco Steel & Engineering. Bullard had a long history of heart trouble. While driving what was described as a large truck on 1-75 in the early morning hours his truck veered off the road, into the median, and struck a divider. Bullard died moments after the truck came to rest. The two witnesses to the accident, a passenger and the driver of a car approaching from the opposite direction, saw Bullard slumped over the wheel as the vehicle was crossing into the median. It was claimant’s theory that the stress of driving the truck precipitated or aggravated his underlying arteriosclerotic condition and resulted in a fatal heart attack.
The WCAB examined the medical testimony and noted that defendant’s expert was of the opinion that the cause of death was occlusion of the coronary artery, which is not related to stress. The WCAB, however, did not decide the case on that basis. Rather, it held that- the claimant failed to carry the burden of proof in establishing her theory of recovery. The WCAB analyzed the circumstances underlying the opinion of claimant’s expert who asserted that a relationship existed between the decedent’s employment and the fatal heart attack.
"An examination of Dr. Johnson’s testimony to this juncture is of little probative value. He testified that a man with a history of congestive heart failure could have expired while lying in bed or in a seated position. Further, the doctor emphasized that decedent was under physical or emotional stress. The record is barren of evidence that plaintiff was under stress. In fact, the record is barren of this significant information: the exact size of the truck cab, the method of operating the unit, the type of trailer, the contents of the trailer, and if decedent loaded or unloaded a trailer unit before his death.
* * *
"The burden was on plaintiffs decedent [sic] to show causal relationship between work activity, however slight, and the death. This was not done.” (Emphasis supplied.)
III
A
In Zaremba v Chrysler Corp, 377 Mich 226, 231; 139 NW2d 745 (1966), the Court declared that compensation was payable for work-related heart damage without regard to whether there was unusual exertion before the attack:
" 'Notwithstanding anything we may have said in prior cases, we hold that an accidental injury arises out of the employment when the required exertion producing the injury is too great for the person undertaking the work, whatever the degree of exertion or the condition of his health, provided the exertion is either the sole or a contributing cause of the injury. In short, that an injury is accidental when either the cause or result is unexpected or accidental, although the work being done is usual or ordinary. ’ ” (Emphasis added by that Court.)
Medical theory appears to be unanimous that work-related stress can precipitate or aggravate cardiac injury. The Legislature has, for certain occupations, created a presumption that a relationship between employment and cardiac injury exists. This Court has approved recovery under the workers’ compensation law for heart injury caused by job-related stress. We do not add to or disturb those precepts, but, rather, address matters of proof.
In a workers’ compensation case, "[t]he claimant must show a reasonable relation of cause and effect between work and injury. Other possible or probable causes of injury do not have to be excluded beyond doubt”. Kepsel v McCready & Sons, 345 Mich 335, 343-344; 76 NW2d 30 (1956). The employment need not be the sole cause; it is enough if it contributes to the injury. See Swanson v Oliver Iron Mining Co, 266 Mich 121, 122; 253 NW 239 (1934).
Medical testimony in the context of compensation proceedings for cardiac injuries often encounters special difficulties. Cross-pollination of medical and legal concepts of causality can confuse the ultimate issue and obscure the function of the fact finder.
Doctors and lawyers approach the problem of cause from different perspectives. It has been said: "Medically, 'the cause’ may be considered that activity or agent without which a condition would not have appeared. From the legal point of view, if some factor or element plays a role in bringing about a result sooner than ordinarily would be expected, it may be considered 'a’ cause for which legal liability may accrue.”
The medical assessment of causality in heart cases is complicated by the many factors involved in the causation and progression of an individual’s cardiac disorder.
"The physician’s evaluation of causality in heart disease is further influenced by the fact that, when considered over the expected course of the underlying cardiac disease process, the specific incident or trauma for which there may be legal liability often was of relative unimportance. * * *
"Along the same line of reasoning, the physician’s assessment of causation in heart conditions is affected to a large extent by the fact that in many instances the amount of acceleration of the underlying disease process alleged to have been produced by the incident or trauma under consideration was, when measured over the life span of the underlying disease, inconsequential and insignificant. * * *
"Finally, the physician’s concept of causality is influenced to a large extent by the fact that in many instances the alleged incident or trauma, particularly those involved in workmen’s compensation considerations, was not unique and that if the patient had not encountered this incident at work, he would have met or been subjected to similar stresses or strains at home or at recreation.” Sagall, Heart Disease and the Law— Medico-Legal Considerations of Causality, 30 Tenn L Rev 517, 523-524 (1963).
By contrast, the idea that a relatively insignificant factor may be characterized as causative and significant liability attach to that determination is deeply rooted in the law. Prosser has stated that a person who injured another, "even by so much as a cut on the finger, becomes liable for all resulting harm to the person, although it may be death”. As in the traditional textbook case of the hypothetical plaintiff with an egg-shell skull, it is impossible to determine how long Kostamo could have avoided injury absent the alleged precipitating event. In workers’ compensation law, "[t]he question is whether the injury accelerated his death; whether, by reason of the injury suffered by him, his death occurred sooner than it probably otherwise would”. Swanson v Oliver Mining Co, supra, p 122.
The different theoretical orientation of the medical profession with regard to cause is evident in the testimony of Dr. Rosenbaum, defendant’s expert witness. When asked whether the nature of Kostamo’s work was such as could precipitate cardiac injury in a person having arteriosclerosis, he responded:
"Well, I think that the myocardial infarction which Mr. Kostamo had, as indicated before, was due to underlying coronary arteriosclerosis. I think that the disease present in the coronary arteries had been present for some months or years. It had undergone a natural progression, and it had reached the point where it was inevitable that he was going to have a myocardial infarction.”
In discussing the causal relationship between Kostamo’s employment and his subsequent fatal heart attack, the board relied almost entirely on Dr. Rosenbaum’s opinion that the fatal heart attack was inevitable:
"As to any causal relationship between the work done on the night in question and the subsequent fatal heart attack, Dr. English was of the opinion that there was only a 'possibility.’ In contrast, Dr. Rosenbaum was very emphatic in his opinion that the ultimate heart attack was 'inevitable,’ because the underlying coronary arteriosclerosis had undergone a natural progression to the point of inevitability.
"An experienced referee heard all the witnesses, evaluated the medical proofs and was equally emphatic in his opinion that the decedent’s heart attack was 'in no way’ work-connected.
"Upon a careful review of the file we find that the referee’s decision is amply supported by the evidence and it does not contain any grounds for reversal of his findings.”
The American Heart Association’s Committee on Stress, Strain and Heart Disease, in a report approved by the Steering Committee for Medical and Community Programs oh December 10, 1976, said:
"Deficiencies in present day medical knowledge and diagnostic studies often prevent, in individual cases, precise medical deñnition of pathology, pathophysiologic mechanisms which lead to a result, the time of onset of certain lesions, the sequence in which the lesions developed, and the precise effect of the stimulus under scrutiny. However, because such causality assessments are necessary for medical and legal purposes they have to be made even though based on probability, or reasonable inference.
"/n most instances, the nature of the heart disorder found by clinical or pathological studies does not by itself indicate whether or not some speciBc stress did play a precipitating or contributory role in its development or whether the disorder resulted solely from the natural and expected progression of the underlying disease. Such determination, in large part, must be made by analysis of the circumstances surrounding the occurrence of the pathology found.” (Emphasis supplied.)
In Kostamo the WCAB made no attempt to relate the circumstances surrounding his heart attack, developed through lay testimony, to the medical testimony. The WCAB can, with the assistance of medical experts, identify discrete factors which suggest causality. Factors which have been regarded as significant by courts and commentators were not evaluated by the WCAB. Temporal proximity of the cardiac episodes to the work experience, the hot and dusty conditions of employment, the repeated return to work after each episode and the mental stress to which Kostamo was subjected are potentially significant factors in the causal equation and were not even adverted to by the WCAB in its brief and conclusory opinion.
We do not suggest that any or all of these factors should always be, or, are here, dispositive. Rather, we hold that the WCAB erred in giving preclusive effect to the conclusion of a medical expert and in failing to treat facts developed in lay testimony.
While medical testimony may be helpful, even, ultimately, decisive, the trier of fact is obligated to consider all the testimony in determining legal causation. Lay testimony may not be ignored when considering the causal connection between employment and a heart attack.
In Sentilles v Inter-Caribbean Shipping Corp, 361 US 107, 109-110; 80 S Ct 173; 4 L Ed 2d 142 (1959), the United States Supreme Court addressed the role of medical testimony in an action for compensation under the Jones Act:
"The jury’s power to draw the inference that the aggravation of petitioner’s tubercular condition, evident so shortly after the accident, was in fact caused by that accident, was not impaired by the failure of any medical witness to testify that it was in fact the cause. Neither can it be impaired by the lack of medical unanimity as to the respective likelihood of the potential causes of the aggravation, or by the fact that other potential causes of the aggravation existed and were not conclusively negated by the proofs. The matter does not turn on the use of a particular form of words by the physicians in giving their testimony. The members of the jury, not the medical witnesses, were sworn to make a legal determination of the question of causation. They were entitled to take all the circumstances, including the medical testimony, into consideration.”
The Second. Circuit has extended this view of medical testimony to heart attack compensation cases under the Jones Act. Noting that "[t]he idea that proximate cause between an internal human physical condition and external stimuli cannot be established except by the testimony of a medical witness was expressly rejected by the Supreme Court in Sentilles”, the court, in Wilkins v American Export Isbrandtsen Lines, Inc, 446 F2d 480, 483 (CA 2, 1971), held that it was error for the district judge to withdraw from jury consideration lay testimony with respect to the issue of whether work had caused a heart attack:
"It was error to withdraw from the jury the evidence of Wilkins’ overtime work during the period from the collision to October 3. The jury was entitled to have this broader basis for an evaluation of the cause of the decedent’s heart muscle spasm. It was not bound by the perimeter of expert testimony but rather was entitled to substitute its own practical judgment for that of the expert. The fact that the question put to the doctor is the kind which cannot be answered on the basis of empirical knowledge or with scientific accuracy, does not mean that a jury’s answer to it would be irrational. They were not bound to stay on a scientific platform.”
In Hudson v Owens, 439 SW2d 565, 569 (Ky, 1969), the Kentucky Court of Appeals, in affirming a denial of compensation for a heart attack, held that unanimous supportive expert medical testimony could be rejected:
"It seems to us that the job of the medical witness is to testify to the presence or absence of causation from the medical standpoint, and it is the job of the board to declare whether or not, considering the medical evidence and the other relevant factors present, the situation of a work-connected injury is present. See McNiece, Heart Disease and the Law, pp 128-138.
"The medical evidence, although relevant and material, must be considered not as determinative but rather as part of the totality of circumstances upon which the board must make the factual determination of whether or not the work-connection was de minimis and the cardiac disability merely coincidental with rather than caused by the work-connected event.”
Although we are not faced with the question, we note that courts have held that a prima facie case for compensation because of a heart attack may be established without medical testimony.
B
In Kostamo the WCAB spoke of the "experienced referee [who] heard all the evidence”. Putting aside that the medical testimony was on deposition, the WCAB is obliged to review de novo the decision of the hearing examiner. "The primary function of the appeal board is that of finding what to it are the controlling facts.” Koschay v Barnett Pontiac, Inc, 386 Mich 223, 230; 191 NW2d 334 (1971). The Constitution and the statute grant finality to the findings of fact of the WCAB, not of a referee. The WCAB, no less than the testifying experts, must examine and address the circumstances surrounding the cardiac episode which suggest a causal link.
A claimant need establish causality only by a preponderance of the evidence. The WCAB may conclude that the party who has the burden of proof has produced evidence which preponderates when it is persuaded, viewing all the evidence, circumstances and reasonable inferences, that the evidence and inferences which support the claim outweigh those which oppose it. Whether the evidence so persuades and therefore preponderates is a judgment confided to the WCAB with which a court may interfere only when convinced that there is no evidence to support that judgment.
In a number of cases we have emphasized that we cannot review a decision of the WCAB as a question of law unless its findings of fact are sufficiently detailed so that we can separate the facts it found from the law it applied, and that conclusory findings are inadequate because we need to know the path it has taken through the conflicting evidence, the testimony it has adopted, the standards followed and the reasoning used to reach its conclusion.
C
Dr. English, Kostamo’s medical expert, stated that Kostamo’s work "could have”, "might have”, "possibly” precipitated or aggravated Kostamo’s heart attack. Dr. Rosenbaum, defendant’s expert, stated positively that Kostamo’s work "did not play a role in the production of his attack, nor in his subsequent death * * *”.
In reviewing this testimony the WCAB apparently placed critical importance on the comparative certainty with which the doctors expressed themselves.
Dr. English’s failure to state a medical opinion with certainty reflects the current status of scientific knowledge, not a lack of merit in the claim ant’s position. "The matter does not turn on the use of a particular form of words by the physicians in giving their testimony.” Sentilles, supra, p 109. The law does not place on claimants the impossible burden of proving with certainty that work-related stress contributed to their cardiac disorder.
In Jarman the WCAB rejected the suggestion that Jarman’s expert’s testimony was of little probative value because his opinions were expressed tentatively. We agree. The manner in which a doctor’s opinion is expressed is not determinative of its probative value.
The WCAB in Jarman does not appear to have granted preclusive effect to a medical conclusion, as it did in Kostamo. The bulk of the opinion is devoted to a detailed examination of the circumstances surrounding Jarman’s heart attack underlying the expert’s opinion. The WCAB’s review of the testimony — the difficult work schedule, time pressures, physical labor and sense of responsibility under which Jarman labored — adequately support its conclusion that work-related physical and emotional stress existed and contributed to Jar-man’s heart attack.
In Jarman the WCAB related the medical testimony to the factual background. In Kostamo it did not; we are presented only with a conclusion.
Because of the differing terminology of doctors and lawyers, conclusory statements concerning causation should be rejected by the WCAB, and their uncritical adoption, without examination or relation of the facts to the conclusion, should be rejected by the appellate courts.
It is for the foregoing reasons that we affirm Jarman and vacate the WCAB’s opinion in Kostamo and remand to it for further proceedings and detailed findings of fact on the issue whether his heart attack was caused or aggravated by stressful working conditions.
We affirm Bullard, Fiszer and Hannula.
Kavanagh, Williams, and Blair Moody, Jr., JJ., concurred with Levin, J.
Ryan, , J.
We granted leave in these workers’ compensation cases and directed that they be argued and submitted together because each concerns a problem which we perceive to be of importance to the law of workers’ compensation.
Each of the cases presents a single factual issue: whether the plaintiff established a medical causal relationship between the physical, mental or emotional stress encountered in his employment and a subsequent industrially disabling injury. The facts in the cases are as follows:
Kostamo v Marquette Iron Mining Company
Onnie Kostamo was employed by the defendant, Marquette Iron Mining Company, for about 20 years. At the time of the incident in question, his job consisted of operating a front-end loader. On the morning of May 21, 1968, while working his regular shift, Mr. Kostamo experienced two or three episodes of what he called "heart attack symptoms,” and eventually was taken to a hospital where he died seven days later at the age of 63.
A claim for compensation was filed. The medical testimony at the hearing indicated that Kostamo suffered from pre-existing arteriosclerosis, essentially a natural degenerative condition marked by the loss of elasticity, thickening and hardening of the arteries.
The medical experts who testified did not dispute the fact that the work performed over the years did not produce the underlying disease, arteriosclerosis; rather they disagreed as to whether Mr. Kostamo’s work on the night of the three heart episodes could have been a factor in precipitating the "heart attack” by aggravating the underlying pathology.
Dr. English, testifying for the plaintiff, opined that the attack might not have occurred as soon as it did or might not have occurred at all if Mr. Kostamo had not continued to work in the face of the previous episodes of "heart attack symptoms” that evening.
In contrast, defendant’s expert, Dr. Rosenbaum, testified that considering the circumstances, including the underlying disease and the degree of Mr. Kostamo’s activity on the night in question, there was no relationship between stress from the employment and the subsequent heart attack. Essentially, Dr. Rosenbaum maintained that the coronary failure had been inevitable for some time and the circumstances surrounding it were merely coincidental. He testified, in addition, that to maintain that the work circumstances played any significant role in precipitating the heart attack was mere speculation.
The hearing referee determined that the heart attack which the decedent sustained was in no way related to his employment with the defendant. That determination was affirmed by the Worker’s Compensation Appeal Board.
Bullard v Copco Steel & Engineering
At the time of his death, Clarence Bullard was a truck driver for the defendant, Copco Steel and Engineering. On March 1, 1970, Bullard was driving his truck northbound on 1-75 near Vandalia, Ohio. Testimony indicated that the truck left the northbound lanes, crossed the median, crossed both southbound lanes and came to rest at the bottom on an embankment after striking the guardrail on the west side of the highway.
Evidence obtained through an autopsy indicated that the cause of death was cerebral anoxia, as a consequence of an acute myocardial infarction caused by the complete occlusion of the left descending coronary artery. The autopsy also revealed the presence of advanced degenerative arteriosclerosis in the coronary arteries. Other evidence showed an extensive history of heart disease and advice to Bullard that he curtail his activity and not return to work. He was 50 years old at the time of his death.
Dr. Johnson, testifying for the plaintiff, opined that Bullard’s work contributed to his injury. In his testimony he stated that he was sure, from the patient’s history and the pathologist’s physical findings, that the decedent still had an active myocardial infarction at the time he returned to work and that this underlying condition was aggravated by the stress involved in his particular kind of work, regardless of how minimal that might be.
The defendant’s expert, Dr. Robert Schneck, disagreed. On cross-examination he elucidated his opinion by explaining that certain forms of "heart attacks” may be precipitated by stress and certain other forms are inevitable. Dr. Schneck premised his position on the fact that the autopsy report indicated that the decedent was suffering from advanced arteriosclerosis and that the myocardial infarction was precipitated by a thrombosis. He further mentioned that the very nature of a thrombosis or total occlusion of a coronary artery renders irrelevant any considerations involving the amount of stress to which Bullard may have been subject at the time of the infarction. He stated, essentially, that because the blood supply to the heart muscle becomes totally cut off when there is total occlusion, a coronary infarct would have formed regardless of the degree of heart activity.
Under Dr. Schneck’s analysis, there was no causal relationship whatsoever between Bullard’s work and his death.
In what may be viewed as conflict between experts, possibly emanating from a theoretical divergence, Dr. Schneck apparently elucidated his opinion more persuasively insofar as the Worker’s Compensation Appeal Board was concerned. Although the referee awarded compensation to the plaintiff, the appeal board reversed the decision on the grounds that the plaintiff had failed to sustain the burden of proving any relationship between the decedent’s employment and his death. The appeal board concluded that the decedent was the victim of an ordinary disease of life unaffected by employment exposures and was, therefore, not entitled to compensation.
Hannula v Cleveland-Cliffs Iron Company
Paul Hannula worked for the defendant, Cleve land-Cliffs Iron Company, as a "stope scraperman”. His job entailed rather heavy work such as lifting, blasting, and operating heavy equipment. In June 1971, Hannula first noticed pain in his chest and arms while working. In August he consulted his family doctor, Kenneth Repola, who advised him to discontinue work because of the danger of heart attack. Hannula’s last day of work was August 19, 1971. At the time of the hearing, December 5, 1972, he was 51 years old.
He filed a claim for compensation alleging that his heart condition was work-related. The medical witnesses agreed that Hannula was suffering from advanced arteriosclerotic heart disease, of which his work experience was not an etiological factor. They also agreed that Mr. Hannula had prodromal angina pectoris. Angina is a symptom of arteriosclerosis which manifests itself through debilitating pains in, about and extending from the chest cavity. The pains are essentially due to coronary insufficiency (lack of oxygen) and oftentimes precede myocardial infarctions. The experts further agreed that angina is neither a disease nor an injury. It is a symptom. As such it is evidence of a disability, but per se, not compensable even if aggravated only at work, unless the underlying disease or injury is work-related.
The plaintiff’s expert, Dr. Young, stated that two episodes of prolonged chest pain were evidence of severe coronary insufficiency and opined that a myocardial infarction occurred during these instances.
Dr. Wright, testifying for the defendant, disputed such a claim, relying on Hannula’s laboratory reports and X-rays which showed a normal heart. In essence, Dr. Wright’s findings were that Mr. Hannula had not suffered an injury but was forced to leave his employment because of a debility attributable to the underlying arteriosclerosis.
The referee awarded compensation to the plaintiff but the appeal board reversed the decision based on the fact that the tests, including an electrocardiogram, showed no signs of an infarction and the fact that Mr. Hannula’s angina was the symptom of an ordinary disease of life.
Fiszer v White Pine Copper Company
Jan Fiszer was employed by the defendant as a "lubeman” and later as a "hooker”. He performed various duties throughout the copper mine. In May, 1970 he was involved in a truck accident at work. He experienced chest pains for three weeks following the accident and stopped working on May 23, 1970. He was hospitalized and the doctor diagnosed an ulcer, later changing his mind and diagnosing a heart ailment. Fiszer does not claim compensation based on this incident. His petition for hearing before the Bureau of Worker’s Compensation alleges injury on or about his last day worked in 1972. Fiszer returned to work in October, 1971. On January 23, 1972, he experienced severe chest pain, later diagnosed as angina, while performing heavy work in cold weather. On the advice of his family doctor, he did not return to work. At that time, Fiszer was 46 years old.
There was extensive medical evidence in this case. Fiszer was examined by five doctors whose reports are all in the record. The general consensus was that Fiszer suffered from arteriosclerotic heart disease which was not work-related.
Once again Dr. Young testified for the plaintiff and postulated past myocardial infarction which he believed was caused by stress encountered in the work-related truck accident. The balance of the medical evidence — the clinical test results and the diagnoses of the other four doctors — negated any findings of cardiac damage. In essence, the evidence preponderated in favor of the defendant’s position that Fiszer’s disability was due to the natural progression of coronary artery disease.
The Worker’s Compensation Appeal Board reversed the referee’s award of benefits to the plaintiff, holding that the disability was attributable to plaintiff’s arteriosclerosis which was an ordinary disease of life and did not arise out of and in the course of plaintiff’s long-time employment with defendant, White Pine Copper Company.
Jarman v Atlas Supply Company
Jack Jarman was 36 years old at the time of this incident. His work as a general laborer and truck driver included the manual loading and unloading of heavy objects.
On the day before the heart attack which is the basis of his claim, Jarman worked a long shift and performed heavy work. He arrived at home at about 6 p.m. and spent a quiet evening playing cards with his wife and another couple. At midnight he retired only to awaken at about 3 a.m. with a nauseated feeling. He suffered a disabling myocardial infarction at approximately 4 a.m.
The fact that Jarman had a heart attack is not disputed, nor is it disputed that he suffered from pre-existing arteriosclerotic heart disease which was somewhat accelerated by his diabetes. The conflict in this case is whether Mr. Jarman showed a medical relationship between the stress encountered at his work and the myocardial infarction.
Dr. Sheperdigian, the plaintiff’s treating physi cian, opined that the stress from Mr. Jarman’s employment played a role in precipitating the subsequent heart attack. The defendant did not call a medical expert witness but chose instead to rely upon such factors as the underlying disease as well as the time lag between the actual labor and the subsequent attack to refute any possible relationships between the work and the infarction.
Although the hearing referee denied benefits to the plaintiff, the Worker’s Compensation Appeal Board reversed. The appeal board concluded that the plaintiff had sustained his burden of proving a relationship between the heart attack and the work and, accordingly, awarded benefits.
It is elementary that in all workers’ compensation cases the claimant must factually establish both a personal injury and a "medical cause in fact” relationship between his employment and that injury. Any legal test of causality which this Court or any other may impose will ultimately be subject to these requirements. Absent a showing of the requisite factual relationship between a personal injury and an individual’s employment, the injury cannot logically be said to arise "out of and in the course of his employment”. MCLA 418.301; MSA 17.237(301).
The threshold question common to all of the cases before us is whether, in the evidence produced, that relationship has been shown. In Kostamo, Bullard and Jarman, although the existence of a personal injury, specifically a myocardial infarction, was not controverted, there was disagreement over whether the various claimed work-related stresses were factors in precipitating the infarction. In Kostamo and Bullard, the Worker’s Compensation Appeal Board, undoubtedly upon consideration of the testimony of the parties’ medical experts, determined that a factual relationship between the work and the injury was not established and, therefore, denied benefits to those plaintiffs. On the other hand, under different factual circumstances, the plaintiff in Jarman was determined to have met his burden of proof on this exclusively factual issue and was awarded benefits.
Similarly, the critical issue in both Hannula and Fiszer was strictly factual. In both of the cases, the Worker’s Compensation Appeal Board determined essentially that the plaintiff did not establish the fact that he incurred á discrete injury, but instead merely suffered from a debility as the consequence of pre-existing, nonwork-related arteriosclerosis. Accordingly, in Hannula and Fiszer benefits were denied.
It is uncontroverted that the scope of our review in cases of workers’ compensation is limited. Zaremba v Chrysler Corp, 377 Mich 226; 139 NW2d 745 (1966); Coates v Continental Motors Corp, 373 Mich 461; 130 NW2d 34 (1964); Thornton v Luria-Dumes Co-Venture, 347 Mich 160; 79 NW2d 457 (1956).
Const 1963, art 6, § 28 provides that "in the absence of fraud unless otherwise provided by law” findings of fact "in workmen’s compensation pro ceedings shall be conclusive”. Also, see MCLA 418.861; MSA 17.237(861).
This Court has repeatedly held and is firmly committed to the rule that findings of fact are conclusive if supported by any of the evidence presented. Hlady v Wolverine Bolt Co, 393 Mich 368; 224 NW2d 856 (1975); Johnson v Vibradamp Corp, 381 Mich 388; 162 NW2d 139 (1968); Mitchell v Metal Assemblies, Inc, 379 Mich 368; 151 NW2d 818 (1967); Thornton v Luria-Dumes Co-Venture, supra.
In the cases before us, the contested Worker’s Compensation Appeal Board determinations, concerning the relationship, if any, of the work-related stress to the subsequent heart episodes, were exclusively factual in nature. In each instance the factual determination of the Worker’s Compensation Appeal Board was supported by competent evidence.
In view of that fact and of this Court’s limited scope of review, the appeal board’s decisions in all five cases are affirmed.
Coleman, C.J., and Fitzgerald, J., concurred with Ryan, J.
Jan Fiszer was employed by the White Pine Copper Co. For seven years he was a lube man. This work required him to perform extensive, strenuous work on machinery. In May, 1970 he experienced pain in the chest while at work. His physician, Dr. Archibald, ordered him to cease work. In October, 1971, after a 17-month disablement, he returned to work as a hooker. This job required him to lift steel pipes, plates, boxes and supplies to a truck hoist. On January 28, 1972, he again suffered pains in the chest. After this experience he was told to work no more. At the time Fiszer was 46 years old.
The hearing referee granted compensation. The WCAB reversed.
The WCAB carefully reviewed five doctors’ testimony. It noted that claimant’s experts, Drs. Archibald and Young, posited a myocardial infarction, an injury to the heart muscle. It noted the absence of test support substantiating a myocardial infarction. Dr. Archibald and Dr. Young recognized, and the reports of three other doctors confirmed, that three electrocardiograms taken of Fiszer revealed no infarction. Drs. Archibald and Young relied on Fiszer’s having experienced severe distress at work and said that myocardial infarctions do not always appear in electrocardiograms taken some time after the incident.
It was for the WCAB to decide, in light of the conflicting medical testimony, the purely medical dispute whether Fiszer had a heart attack.
Paul Hannula was employed by the Cleveland-Cliffs Iron Co as a stope scraperman until August 19, 1971, when he was advised by doctors to discontinue work. His job included operating an electric tugger (a digging instrument), using a bar to poke holes in the face of the mine, carrying explosives and coils of rope, and occasionally carrying and using a drill weighing approximately 60 pounds. Hannula testified that he first experienced chest pains in June, 1971. He was examined by his family physician. Six weeks later he was advised by his doctor to discontinue work.
The hearing referee granted compensation. The WCAB reversed.
Hannula had arteriosclerosis prior to his disablement. The WCAB’s opinion addresses the issue “whether his work aggravated that condition to disability (i.e., worsened the condition, or simply caused transient angina pains)”. See MCL 418.401(c); MSA 17.237(401)(c).
The WCAB’s opinion reviews the testimony of two examining internal medicine specialists, Dr. Irving Young for the claimant, and Dr. K. Charles Wright for the defendant. Dr. Young testified that the electrocardiogram taken both at rest and after exercising was normal and revealed no heart damage. Nevertheless he concluded on the basis of the history of two episodes of prolonged chest pain that Hannula "almost surely” suffered myocardial necrosis; that is, myocardial infarction. “These episodes occurred during the stress of work, and I feel, therefore, they are work related.” Dr. Young went on to state that the underlying arteriosclerosis was unrelated to the work experience.
Dr. Wright said that there was no indication from the electrocardiogram or the clinical history that Hannula had suffered a myocardial infarction and went on to explain the basis for his opinion:
"Q. But I take it you found nothing in your examination of this man or in his history to make you think there had been an aggravation?
"A. He did not give me a history which was typical of this. A patient who has had a heart attack would be sweating, they are pale; they would be weak.
"Q. He did not have this?
"A. He did not give me a history of that when I was talking to him.
"Q. Is there any significance to obtaining relief through nitroglycerin tablets [as was testified to by Hannula]? I mean, does that assist in differentiating between garden variety angina pectoris and some degree of infarct?
"A. Usually if you have a degree of infarct you have less or no relief from the nitroglycerin, yes. This helps some, the duration of pain and whether they are perspiring. * * *”
As in Fiszer, it was for the WCAB to resolve the factual issue created by the conflicting medical testimony.
The diesel tractor-shovel was equipped with a scrubber, power steering and automatic transmission. The hydraulic shovel was controlled by two levers. To mount and dismount, Kostamo had to climb approximately four feet over the tire.
The tractor-shovels were equipped with respirators.
Kostamo refused an ambulance and insisted on being driven to the hospital in his own automobile. A kiln in another area of the plant was under repair that night.
Kostamo was treated as an acute coronary case from the time of admission. The death certificate indicates that the immediate cause of death was acute myocardial infarction as a consequence of arteriosclerosis. No autopsy was performed.
The witnesses said that Bullard "straightened himself up for a few minutes, then he careened into a guard rail and went over”. It is unclear whether this testimony refers to the straightening up of the truck which they had noted veered directly off the road and left no skid marks or to Bullard’s position in the truck. In any event, the WCAB could properly attach little weight to that testimony.
There was evidence to indicate the absence of stressful conditions. The two eyewitnesses testified that weather conditions were good and that there was no traffic other than the truck and their own vehicle on the road at the time.
The problem of pre-existing disease or condition was addressed in an earlier case:
"Nothing is better settled in compensation law than that the act takes the workmen as they arrive at the plant gate. Some are weak and some are strong. Some, particularly as age advances, have a preexisting 'disease or condition’ and some have not. No matter. All must work. They share equally the hazards of the press and their families the stringencies of want, and they all, in our opinion, share equally in the protection of the act in event of accident, regardless of their prior condition of health.” Sheppard v Michigan National Bank, 348 Mich 577, 584; 83 NW2d 614 (1957).
"It is well established that at times physical activity, while not causing the primary heart disease, may precipitate acute congestive heart failure and/or acute ischemic episodes. The ischemia can precipitate angina pectoris or a dysrhythmia, perhaps a fatal one.” American Heart Association, Report of the Committee on Stress, Strain and Heart Disease, p 4. Reprinted from 55 Circulation (No 5, May, 1977).
MCL 418.405; MSA 17.237(405), establishes a presumption that respiratory and heart diseases manifesting themselves during the active service of policemen and firemen are "deemed to arise out of and in the course of employment in the absence of evidence to the contrary”.
See, e.g., Zaremba v Chrysler Corp, 377 Mich 226; 139 NW2d 745 (1966), and Mottonen v Calumet & Hecla, Inc, 360 Mich 659; 105 NW2d 33 (1960). See, also, McNiece, Heart Disease and the Law (Englewood Cliffs, NJ: Prentice-Hall, Inc, 1961), p 17, noting nationwide acceptance of the proposition that physical strain can "cause” cardiac disability or death.
See, also, Fergus v Chrysler Corp, 389 Mich 811 (1973).
AHA Report, supra, p 5.
See Small, Gaffing at a Thing Called Cause: Medico-Legal Conñicts in the Concept of Causation, 31 Tex L Rev 630 (1953).
Prosser, Law of Torts (4th ed), pp 261-263.
See, also, McNiece, supra, p 12:
"[T]he courts are not talking of causation in an etiological sense but rather of aggravation, acceleration, or 'lighting up.’ Unlike the medical profession, the courts are not concerned with the degree of impairment which may lurk beneath the surface appearances of a man. Their inquiry is not directed to the undoubted existence of the chronic and longstanding features of cardiac impairments, but rather to the fact that the work contributed, at least in some slight measure, to bring those impairments to light.”
However emphatic the referee’s opinion may have been, as previously indicated it consisted of one sentence with no explanatory reference to the proofs adduced.
AHA Report, supra, p 5.
See McNiece, supra, pp 17-18.
Id., pp 39-41.
Professor Larson has declared:
"The most obvious relevance of this element is in showing causal connection between the obligations of the employment and the final injury; for if the workman, for some reason, feels impelled to continue his duties when, but for these duties he could and would have gone somewhere to lie down at once, the causal contribution of the employment to the aggravation of the condition is clear.” IB Larson, Workmen’s Compensation Law, § 38.64(c), p 7-145.
See McNiece, supra, pp 30-31.
The American Heart Association recommends an "analysis of the circumstances surrounding the occurrence of the pathology found”, and that a series of questions be answered:
"Coronary heart disease is usually present for years before it is clinically identified. There are many conditions which may influence the development of this disease, and/or make it clinically evident. Medical opinions by well-qualified physicians may vary, depending upon which of the many factors are emphasized in considering causal relationships. This variation of medical opinion may be minimized if (1) the opinions are based upon generally accepted current medical knowledge and (2) as many details of the specific case as possible are available.
"The variations in individual response to a given stress or stimulus preclude specific guidelines or causality criteria covering all situations. Each case must be evaluated individually, in the light of all available medical data, including clinical observations, laboratory studies, electrocardiographic and X-ray findings. Based upon these data, a careful reconstruction must be made of the sequence of events likely to have occurred. The stress or stimulus under consideration as a possible etiologic or worsening agent must be fully identified. Whenever the causality assessment involves death, an autopsy should be performed. It must again be emphasized that such assessment, to be medically valid, must be consistent with current medical thinking.
"The medical acceptance of a causal relationship between a specifically identified stress or stimulus and a given cardiac abnormality requires as a minimum that the following be accomplished:
"1. A diagnosis of the specific cardiac lesion, disorder or dysfunction must be established and confirmed as fully as possible by objective means. The following questions must be answered:
"a. Does the patient have heart disease and, if so, what is the complete and specific medical diagnosis? What is the degree of func tional impairment? What are the autopsy findings, if death has occurred?
"b. Did the patient have heart disease prior to exposure to the identified stress; if not, when did evidence of heart disease first appear?
"c. What is the nature of the stress or exposure under consideration as a possible causative element?
"d. Did the patient’s heart condition change after the stressful event? If there was a change, when was this change apparent and documented? Was this change more than the 'natural course of the disease?’ Was this change temporary or permanent?
"2. The stimulus or stress claimed to have caused cardiac injury, disability or death must be described as fully as possible.
''a. Physical stress can usually be measured in absolute terms, and its effects depend upon the physical and emotional condition of the person involved, as well as upon environmental factors.
"b. Emotional stress is less readily measurable and the effects depend upon the emotional and physical state of the individual at the time of exposure.
"In evaluating emotional stress, it frequently is difficult to determine the relative importance of one specifically identified stress, or to select one emotional stress over another (work related? family related?).
"3. The time interval between exposure to a given stimulus and the development of a cardiac lesion or heart dysfunction must be compatible with current scientific concepts of the mechanism of disease production.” AHA Report, supra, pp 5-6.
An expert tribunal, as well as doctors, is capable of answering many of these questions through an examination of the circumstances surrounding the event.
The jury had entered a verdict for the plaintiff on his theory that the accident activated or aggravated the previously latent tubercular condition. The Court of Appeals reversed on the ground that the evidence did not justify the jury’s conclusion that the accident caused the illness.
See, for example, Industrial Commission v Havens, 136 Colo 111; 314 P2d 698 (1957); Crescent Wharf & Warehouse Co v Cyr, 200 F2d 633 (CA 9, 1952); and Adelaide Stevedoring Co, Ltd v Forst, 64 Commonwealth L Reports 538, 563 (Australia, 1940).
This view was well stated in the opinion of Rich, A.C.J., in Adelaide Stevedoring Co, Ltd v Forst, supra, p 563, where the Australian High Court affirmed an appellate reversal of a denial of compensation in a heart attack case:
"I do not see why a court should not begin its investigation, i.e., before hearing any medical testimony, from the standpoint of the presumptive inference which this sequence of events would naturally inspire in the mind of any common-sense person uninstructed in pathology. When he finds that a workman of the not-so-young standing attempts in a posture calculated by reason of the pressure on the stomach to disturb or arrest the rhythm of the heart a very strenuous task not forming part of his ordinary work and then collapses almost immediately and dies from a heart condition, why should not a court say that here is strong ground for a preliminary presumption of fact in favour of the view that the work materially contributed to the cause of death? From this standpoint the investigation of physiological and pathological opinion shows no more than the current medical views find insufficient reason for connecting any coronary thrombosis with effort. Be it so. That to my mind is not enough to overturn or rebut the presumption which flows from the observed sequence of events. If medical knowledge develops strong positive reasons for saying that the lay common-sense presumption is wrong, the courts, no doubt, would gladly give effect to this affirmative information. But, while science presents us with no more than a blank negation, we can only await its positive results and in the meantime act on our own intuitive inferences.”
DeGeer v DeGeer Farming Equipment Co, 391 Mich 96, 101; 214 NW2d 794 (1974).
See Aquilina v General Motors Corp, 403 Mich 206, 210-212; 267 NW2d 923 (1978).
DeGeer v DeGeer Farming Equipment Co, supra, pp 100-101; Steel v Suits News Co, 398 Mich 171, 177; 247 NW2d 284 (1976); Braxton v Chevrolet Grey Iron Div, General Motors Corp, 396 Mich 685, 694; 242 NW2d 420 (1976); Harrison v Tireman & Colfax Bump & Repair Shop, 395 Mich 48, 50; 232 NW2d 274 (1975); McAvoy v H B Sherman Co, 401 Mich 419, 468; 258 NW2d 414 (1977) (Coleman, J., dissenting); McClary v Wagoner, 16 Mich App 326, 328; 167 NW2d 800 (1969); see, also, Leskinen v Employment Security Commission, 398 Mich 501, 509; 247 NW2d 808 (1976); Beebee v Haslett Public Schools, 401 Mich 954 (1977).
See Yates v Wenk, 363 Mich 311, 314-315; 109 NW2d 828 (1961).
See, also, Martin, The Uncertain Rule of Certainty: An Analysis and Proposal for a Federal Evidence Rule, 20 Wayne L Rev 781, 797-808 (1974).
See Sondag v Ferris Hardware, 220 NW2d 903, 907 (Iowa, 1974):
"The very nature of opinion evidence deprives it of the quality of absolute certainty. If it had the quality, it would not be an opinion. Shepard v Carnation Milk Co, 220 Iowa 466; 262 NW 110, 114 (1935). The opinion of experts need not be couched in definite, positive or unequivocal language. Dickinson v Mailliard, 175 NW2d 588, 593 (Iowa, 1970).”
See 3 Larson, supra, § 80.32, pp 15-429 and 15-430.
The legal test of causality is premised upon the coverage formula: "arising out * * * of his employment”. Most courts in the past have interpreted this language to require a showing that the injury was caused by an increased risk to which the claimant, as distinct from the general public, was subjected by his employment. A number of courts have modified this peculiar or increased risk doctrine and accept a showing that the risk was actually a risk of employment regardless of whether it was common to the public. Also, a few courts have adopted the positional risk test, under which an injury is compensable if it would not have happened but for the fact that the conditions or obligations of his employment put the claimant in the position where he was injured. The proximate cause test, requiring forseeability and the absence of an intervening cause, has generally been abandoned. 1 Larson, The Law of Workmen’s Compensation, §§ 6.00-13.23, pp 3-1 — 3-342.
"The sole question on review by the Court of Appeals, and in turn here, is 'whether there is any evidence to support the award.’ ” Mitchell v Metal Assemblies, Inc, 379 Mich 368, 370; 151 NW2d 818 (1967).
"Our obligation is to accept, without question, findings that are certified here if there be any evidence whatever to sustain those findings, regardless of thought or suggestion addressed to improbability thereof.” Thornton v Luria-Dumes Co-Venture, 347 Mich 160, 162; 79 NW2d 457 (1956). | [
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ON REMAND
Before: Hood, P.J., and Connor and R. C. Kaufman, JJ.
Connor, J.
Aetna Casualty & Surety Company and Campbell, Wyant & Cannon Foundry appeal by leave granted from a decision of the Workers’ Compensation Appellate Commission. This Court originally denied the application for leave to appeal. In lieu of granting leave to appeal, the Supreme Court remanded the case back to this Court for consideration as on leave granted. 437 Mich 929 (1991). We affirm the decision of the Workers’ Compensation Appellate Commission in part, but modify its calculation of benefits that must be paid.
i
The facts of this case are generally agreed upon by the parties. No one disputes the fact that plaintiff has a work-related disability and therefore qualifies for workers’ compensation. Plaintiff’s employer was Campbell, Wyant & Cannon Foundry. Aetna Casualty & Surety Company is Campbell’s workers’ compensation insurance carrier. The Silicosis, Dust Disease, and Logging Industry Compensation Fund was named a party in this case as a result of the plaintiff’s dust disease disability.
On the first scheduled day of trial in this case, Campbell and Aetna agreed to pay benefits to plaintiff at the full compensation weekly rate of $314.63. Plaintiff’s last day of work was September 16, 1986. Plaintiff suffered from a dual disability: an injury to his back, attributable to lifting on the job, and a lung disease, attributable to an exposure to dust. Campbell, Aetna, and the fund agreed that sixty-five percent of plaintiff’s disability was attributable to his lung disease, while the other thirty-five percent was attributable to his back injury.
The only dispute between the parties was how much Campbell and Aetna had to pay before the fund would reimburse them for plaintiffs weekly benefits. The parties were also able to agree that once the threshold amount was paid, the fund would reimburse Campbell and Aetna for sixty-five percent of plaintiffs weekly rate, or $204.51 a week.
The magistrate ruled in favor of the fund in a decision issued on March 31, 1989, that under MCL 418.531; MSA 17.237(531) and MCL 418.535; MSA 17.237(535) Aetna and Campbell must pay $50,340.80 before the fund would be required to reimburse them for sixty-five percent of the weekly rate. This figure was arrived at by multiplying a weekly rate of $314.63 times 104 weeks and dividing that figure by sixty-five percent. Aetna and Campbell had argued that they should have to pay only $32,721.52 in weekly benefits before being entitled to reimbursement by the fund. Under Aetna and Campbell’s position, the total amount of weekly benefits that they paid, including the portion attributable to the back disability, would be considered in determining when the threshold for reimbursement had been reached.
Campbell and Aetna appealed the magistrate’s decision to the Workers’ Compensation Appellate Commission. It was argued before the wcac that the magistrate’s calculation of the threshold limit was erroneous as a matter of law.
The wcac affirmed the magistrate’s decision, in a decision issued on March 27, 1990, by a two-to-one vote. Campbell and Aetna appeal from that decision.
ii
Under the Workers’ Disability Compensation Act (wdca), employers involved in certain injuries are entitled to have some benefits paid to employees reimbursed through a fund. MCL 418.531; MSA 17.237(531) is the statute that establishes the right to reimbursement. Subsection 1 of that statute provides as follows:
In each case in which a carrier including a self-insurer has paid, or causes to be paid, compensation for disability or death from silicosis or other dust disease, or for disability or death arising out of and in the course of employment in the logging industry, to the employee, the carrier including a self-insurer shall be reimbursed from the silicosis, dust disease, and logging industry compensation fund for all sums paid in excess of $12,500.00 for personal injury dates before July 1, 1985, and for all compensation paid in excess of $25,000.00 or 104 weeks of weekly compensation, whichever is greater, for personal injury dates after June 30, 1985, excluding payments made pursuant to sections 315, 319, 345, and 801(2), (4), and (5) which have been paid by the carrier including a self-insurer as a portion of its liability. [MCL 418.531(1); MSA 17.237(531X1).]
MCL 418.535; MSA 17.237(535) discusses apportionment involving disabilities for dust diseases:
If an employee’s disability is caused by a combination of silicosis or other dust disease, or arose in the course of employment in the logging industry, and other compensable causes, a hearing referee or worker’s compensation magistrate, as applicable, shall apportion the amount of disability between that due to silicosis or other dust disease, or to employment in the logging industry, and other compensable causes. The trustees of the silicosis, dust disease, and logging industry compensation fund shall reimburse the employer liable for compensation for that portion of compensation paid in excess of $12,500.00 for personal injury dates before July 1, 1985, and for all compensation paid in excess of $25,000.00 or 104 weeks of weekly compensation, whichever is greater, for personal injury dates after June 30, 1985, that the silicosis or other dust disease disability, or disability arising out of and in the course of employment in the logging industry, bears to the total disability. [Emphasis added.]
The issue before this Court is how the threshold, after which reimbursement is available to the employer or insurer, should be computed where there is only one employer but two contributing causes of the disability, one covered by the fund and another not covered by the fund.
Aetna and Campbell argue that the total amount of workers’ compensation weekly benefits paid to plaintiff, without apportionment between the two causes of disability, should be used. Under this interpretation, the threshold for reimbursement would be reached earlier. The fund, however, contends that because the disability is subject to apportionment with regard to the causes, the weekly benefits paid should be apportioned similarly, with the figure of sixty-five percent representing the dust disease disability. This would extend the amount of benefits that need to be paid by Aetna and Campbell before the threshold will be reached.
Although this precise issue has not been addressed by this Court previously, other panels have addressed similar problems. In Cotton v Campbell, Wyant & Cannon Foundry, 57 Mich App 52, 57-58; 225 NW2d 187 (1974), this Court held that Campbell could not combine the amount of benefits that it was paying the plaintiff for a dust disease disability with the benefits paid by another employer for a disability not attributable to a dust disease, in order to reach the threshold faster.
Recently, in Nelligan v Gibson Insulation Co, 193 Mich App 274, 277-278; 483 NW2d 460 (1992), the effect of recoupment of benefits under MCL 418.827; MSA 17.237(827) was considered in association with the threshold limit of MCL 418.531; MSA 17.237(531). The Court held that before an employer or its insurer could obtain reimbursement from the fund, the employer or insurer had to demonstrate that they suffered an out-of-pocket loss exceeding the threshold amount after subtracting any monies recouped, or entitled to be recouped, from a third party pursuant to MCL 418.827; MSA 17.237(827). Nelligan at 282.
In its opinion, the Nelligan panel noted that in interpreting statutes, the primary rule is to determine and effectuate the Legislature’s intent. To do this, the statute should be given a reasonable construction, considering the purpose of the statute and the object to be accomplished. Id. at 280. An act should be read in its entirety, so that the meaning given to one section is harmonious with that given to other sections and to avoid absurd consequences. Id. Because of the wcac’s expertise, its decision is given due deference. Id. at 281.
After reviewing the language of MCL 418.535; MSA 17.237(535), and reading that statute as a whole, we believe the magistrate and the wcac reached the correct result. The purpose behind the establishment of the fund is to compensate employees for certain industry-wide diseases by spreading the cost of benefits in those industries to all Michigan employers, thereby protecting the specified employers from financial ruin. Stottlemeyer v General Motors Corp, 399 Mich 605, 611-612; 250 NW2d 486 (1977). "The fund was created to cushion threatened industries, not to limit the liability of all employers if by happenstance an employee should suffer from a dust disease.” Id. at 612.
The last sentence of MCL 418.535; MSA 17.237(535) states that reimbursement is available from the fund "for all compensation paid in excess of $25,000.00 or 104 weeks of weekly compensation, whichever is greater, . . . that the silicosis or other dust disease disability . . . bears to the total disability.” Reading this statute as a whole, the amount of compensation paid by the employer or insurer must be adjusted on the basis of the apportionment made with regard to the total disability. We believe this also means that before reimbursement is available, the apportionment of the disability must also be reflected in the threshold amount. To hold otherwise would ignore the Legislature’s clear intent to allow reimbursement only for disabilities covered by the fund. In this case, Campbell and Aetna are liable to plaintiff for benefits as a result of a partial disability not covered by the fund. We cannot ascertain any reason why Campbell and Aetna should be permitted to supplement the threshold by adding in the benefits they are required to pay plaintiff for his back injury, which is not covered by the fund. Consequently, we believe both the magistrate and the wcac were correct in determining that the apportionment must be made to the threshold amount.
However, we believe the magistrate and the wcac both erred in calculating at what point Campbell and Aetna would reach the threshold. One member of the wcac dissented, and we adopt both the reasoning and the mathematics employed by the dissent.
The magistrate and the wcac majority used the following calculations in this case:
$314.63 times 104 weeks, divided by 65% equals $50,340.80 in benefits that Campbell and Aetna must pay before reimbursement.
The dissenting member of the wcac used the following calculations:
$314.63 times 65% equals $204.51 times 104 weeks, equals $21,269.04. This amount is less than $25,000, therefore benefits beyond 104 weeks must be paid. $25,000 divided by $204.51 equals just over 122 weeks, therefore the threshold is actually $38,384.86 when the non-dust disability is added to the benefits paid.
Campbell and Aetna have used the full weekly compensation rates they pay plaintiff to try to justify their position that in order to meet the threshold amount they unfairly must pay plaintiff either more than $314.63 a week or they must pay for more than 104 weeks. The arguments offered with regard to this point ignore the language of MCL 418.531(1); MSA 17.237(531X1). Campbell and Aetna, according to that statute, must pay either $25,000 or benefits for 104 weeks, whichever is greater, before reimbursement is available. At a rate of $314.63 a week for both disabilities, this amount should be reduced to $204.51 to reflect that portion of the benefits attributable to the disability covered by the fund, or sixty-five percent of the weekly rate. The weekly rate need not be increased, but the accounting of benefits paid must reflect the apportionment. Accordingly, at an apportionment rate of $204.51 a week, after 104 weeks Campbell and Aetna will have paid $21,269.04 in benefits for plaintiff’s dust disease. Consequently, Campbell and Aetna will not have reached the alternative threshold of $25,000 for reimbursement. Therefore, additional benefits of $3,730.96, attributed to the dust disease disability only, must be paid before reimbursement is available. At the rate of $204.51, Campbell and Aetna will fulfill this requirement with just over eighteen additional weeks of payments. The dissenting member of the wcac correctly apportioned the benefits to arrive at the total benefits Campbell and Aetna must pay before reimbursement is available. We therefore modify the wcac’s opinion in this case in part to conform with the dissenting opinion of Commissioner Sharon L. Smith.
hi
Campbell and Aetna also argue on appeal that the wcac failed to include a reasoned analysis of this case in its majority opinion and, consequently, the opinion did not comply with MCL 418.861a(13); MSA 17.237(861a)(13).
Before the wbca was revised by 1985 PA 103, the Workers’ Compensation Appeal Board (wcab) enjoyed broad powers, including review de novo of the hearing referees’ decisions. Palmer v ITT Hancock, 189 Mich App 509, 510-511; 474 NW2d 136 (1991) . However, with the replacement of the wcab by the wcac, the authority to review the magistrates’ decisions is drastically less. Id. at 511. Now the burden falls on the magistrates to issue concise written opinions stating all findings of fact and conclusions of law. MCL 418.847(2); MSA 17.237(847)(2). Palmer at 511. See also Holden v Ford Motor Co, 439 Mich 257; 484 NW2d 227 (1992) .
The wcac’s powers are defined in MCL 418.861a; MSA 17.237(861a). That statute provides in pertinent part as follows:
(3) Beginning October 1, 1986 findings of fact made by a worker’s compensation magistrate shall be considered conclusive by the commission if supported by competent, material, and substantial evidence on the whole record. As used in this subsection, "substantial evidence” means such evi dence, considering the whole record, as a reasonable mind will accept as adequate to justify the conclusion.
(10) The commission or a panel of the commission, may adopt, in whole or in part, the order and opinion of the worker’s compensation magistrate as the order and opinion of the commission.
(11) The commission or a panel of the commission shall review only those specific findings of fact or conclusions of law that the parties have requested be reviewed.
(13) A review of the evidence pursuant to this section shall include both a qualitative and quantitative analysis of that evidence and ensure a full, thorough, and fair review thereof.
In this case, the appeal to the wcac involved only the legal issue regarding how to calculate the threshold amount as the Legislature intended. The pertinent facts were not disputed, and the appeal did not involve evidentiary issues. Because the issue before the wcac was a question of law, the standards expressed in MCL 418.861a(13); MSA 17.237(861a)(13) are inapplicable, and we believe the wcac’s majority opinion was adequate to comply with the general requirements of MCL 418.861a; MSA 17.237(861a). We note in particular that MCL 418.861a(10); MSA 17.237(861a)(10) allows the wcac to adopt the magistrate’s opinion. The wcac need not revisit issues involving questions of law already thoroughly and correctly decided by the magistrate, but need correct or clarify the magistrate’s decision only as may be necessary. Although we disagree with a portion of the wcac’s decision in this case, we believe the adoption of the magistrate’s decision was nonetheless appropriate as a procedural matter.
Affirmed in part, reversed in part, and modified. | [
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Griffin, J.
Following a jury trial, defendant was convicted of one count of possession with intent to deliver less than fifty grams of cocaine. MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv). Defendant was sentenced to IV2 to 20 years in prison, and he now appeals as of right. We remand for further proceedings.
1
On November 1, 1986, defendant was stopped for speeding by Michigan State Police Trooper Geoffrey Flohr. Trooper Flohr clocked defendant’s vehicle traveling at ninety-eight miles per hour on US-23. During the course of the stop, it was revealed that defendant’s vehicle was a rental car. The rental papers disclosed that the vehicle had been rented by someone else, that the rental agreement had expired, and that defendant was not an authorized driver under the agreement. In addition, a check of the Law Enforcement Information Network revealed that defendant had outstanding warrants for traffic violations.
Defendant was told that he needed to post a $100 bond in cash for the outstanding warrants. When defendant could not do so, he was placed under arrest by Trooper Steven Farrell, who had responded to Flohr’s call for a backup. Farrell searched defendant and discovered, inter alia, a small green notebook and a telephone paging device.
The troopers reviewed the notebook, which contained a list of names, locations, and numbers. According to Trooper Flohr’s testimony at trial, defendant was unable to explain the notations in the notebook to the troopers’ satisfaction. Believing that the notebook and pager were evidence of drug trafficking, the troopers searched the trunk of the vehicle. Inside, they found a black case containing a digital scale and a paper bag full of envelopes and plastic packages containing cocaine.
ii
On appeal, defendant contends that the trial court erred in denying his motion to suppress evidence. Specifically, defendant argues that the police did not have probable cause to search the trunk and that therefore the evidence that formed the basis of his conviction should have been suppressed. On the basis of the record before us, we agree. -,
It is well settled that the police may lawfully search an automobile without a warrant where they have probable cause to believe that the vehicle contains contraband. What has become known as the "automobile exception” to the warrant requirement was recently summarized by this Court in People v Martinez, 187 Mich App 160, 169; 466 NW2d 380 (1991):
In United States v Ross, 456 US 798; 102 S Ct 2157; 72 L Ed 2d 572 (1982), the Supreme Court reiterated the rule that a search of an automobile without a warrant is reasonable where the automobile legitimately has been stopped by a police officer and the police officer has probable cause to conduct the search. The Court further clarified the rule to specifically hold that if probable cause justifies the search of the lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. Thus, the scope of a search without a warrant authorized by the automobile exception is neither broader nor narrower than that which a magistrate could legitimately authorize by a search warrant. Id. at 825. See also Michigan v Thomas, 458 US 259, 261; 102 S Ct 3079; 73 L Ed 2d 750 (1982).
The test for probable cause is whether the facts and circumstances known to the officers would warrant a person of reasonable prudence to believe that evidence of a crime or contraband sought is in a stated place. Martinez, supra at 170; People v Sinistaj, 184 Mich App 191, 200; 457 NW2d 36 (1990). Furthermore, in Ross, supra at 808, the Supreme Court explained:
[T]he probable-cause determination must be based on objective facts that could justify the issuance of a warrant by a magistrate and not merely on the subjective good faith of the police officers. " '[A]s we have seen, good faith is not enough to constitute probable cause. That faith must be grounded on facts within knowledge of the [officer], which in the judgment of the court would make his faith reasonable.’ ” Id. [Carroll v United States, 267 US 132, 161-162; 45 S Ct 280; 69 L Ed 543 (1924), quoting Director General of Railroads v Kastenbaum, 263 US 25, 28; 44 S Ct 52; 68 L Ed 146 (1923).]
We have thoroughly reviewed the relevant portions of the record in this case. Having done so, we are persuaded that the facts at hand did not provide the troopers with sufficient probable cause to search the car for drugs.
In attempting to validate the search, the prosecutor submits that Trooper Flohr on the basis of his experience, believed the notations in the notebook and the pager provided "strong evidence of drug trafficking.” At first blush, we find it difficult to quarrel with this assessment. Indeed, we would be ignoring the wisdom of our own experience as appellate judges if we refused to acknowledge that drug dealers often use paging devices and coded documents to facilitate their trade. We must emphasize, however, that neither possession of a pager nor possession of a notebook containing unexplained notations is a criminal act. Many legitimate occupations require the use of paging devices. In our view, what is missing from this case is a factual basis for the troopers’ belief that the pager and the notebook found on defendant indicated the presence of drugs in the car at the time the troopers conducted their search. Despite whatever suspicions the troopers may have had regarding defendant’s involvement in the drug trade, the fact remains that the record is devoid of any objective facts that would alert the troopers to the presence of contraband within the confines of the vehicle itself.
Finally, we note that our review of this matter is for clear error. We will reverse a trial court’s ruling on a suppression issue only if we are left with a definite and firm conviction that a mistake was made. Martinez, supra at 171. Here, we are constrained to note that both the district court and the circuit court were seriously concerned about the validity of this search. Ultimately, the circuit court reasoned that the search was reasonable because the troopers "felt that something was wrong, felt it in [their] bones.” Such reasoning, in our view, indicates an improper focus on the troopers’ subjective beliefs regarding what the vehicle might have contained.
hi
On the basis of the foregoing, we reverse the circuit court’s finding that the evidence found in the trunk was admissible as the product of a search based on probable cause. We remand for further proceedings consistent with this opinion. On remand, the circuit court at its discretion may allow the people to introduce additional proofs and argue alternative theories regarding the motion to suppress. The circuit court is directed to reverse defendant’s conviction if the prosecution is unable to prove the legality of the search and seizure of the evidence found in the trunk.
Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Marilyn Kelly, P.J., concurred.
Defendant’s motion was mislabeled as a motion to quash. No prejudice from this error has been alleged. | [
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Per Curiam.
Defendant was convicted by a jury of breaking and entering (MCLA 750.110; MSA 28.305) as an accessory before tbe fact (MCLA 767.39; MSA 28.979). At defendant’s trial, her son testified that be and one of bis friends actually broke in and robbed tbe bouse in question, but that defendant selected tbe bouse and drove him and bis friend to and from tbe premises. Defendant’s son also testified that be and bis mother were also' involved in several other breaking and enterings, and that defendant always drove bim to and from the scene. Tbe other boy involved, tbe friend of defendant’s son, corroborated this testimony.
Mr. Ruth Avery Spradlin was called to testify. Tbe defendant objected to Mr. Spradlin’s testimony, and this objection was overruled by tbe court. The witness testified to another similar crime involving bim and the defendant, in which defendant drove a car to and from tbe scene.
On appeal, defendant urges that tbe admission of Mr. Spradlin’s testimony was error in that bis testimony does not come within tbe statutory exception to the general rule that testimony regarding other unrelated crimes is not admissible in a criminal prosecution.
We express no opinion regarding tbe admissibility of Mr. Spradlin’s testimony; we need not reach this question. Even if we were persuaded to adopt defendant’s argument that this testimony does not fall within tbe statutory exception {supra, footnote 1) we would be forced to conclude that tbe error was harmless. Without any objection from the defendant, two other witnesses testified to defendant’s involvement in other similar crimes. At the time he was called to the stand, Mr. Spradlin’s testimony was merely cumulative. Furthermore, the judge gave an adequate instruction limiting the jury’s consideration of such testimony to the purposes contained in the aforementioned statutory exception.
Affirmed.
MCLA 768.27; MSA 28.1050.
People v Jenness, 5 Mich 305 (1858); Lightfoot v People, 16 Mich 507 (1868). | [
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Memorandum Opinion.
Defendant was charged with first-degree murder, MCLA 750.316; MSA 28.548. He waived trial by jury and was convicted of the lesser offense of manslaughter, MCLA 750.321; MSA 28.553. He was sentenced to a prison term of 7-1/2 to 15 years and appeals as of right.
An examination of the record and briefs discloses no prejudicial error.
Affirmed. | [
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O’Hara, J.
Defendant was convicted by a jury of first-degree murder. MCLA § 750.316 (Stat Ann 1971 Cum Supp § 28.548). He appeals of right. We recite the facts.
The whole unfortunate episode arises from a series of neighborhood quarrels between children of the Bodley and Ratcliff families. It appears that Michael Ratcliff, an 11-year-old brother of the deceased, and Diane Bodley, the 12-year-old daughter of the defendant, had a fight. Michael allegedly kicked defendant’s daughter in the eye and struck Mrs. Bodley breaking her eyeglasses. Both were taken to the hospital.
Upon arriving home, defendant learned of the foregoing events. He rushed to the hospital. Upon arrival he saw his daughter on a stretcher and his wife emotionally distraught. Mrs. Bodley requested that her husband bring certain clothing needed by their daughter. Instead defendant returned home, obtained a shotgun, and walked to the adjacent Rat-cliff home. There he saw Robert Fitzgerald (fiancé of the deceased) and Lorraine Ratcliff, the older sister of Michael. They were standing on the porch. Lorraine was behind a screen door. The shotgun discharged, killing Lorraine and wounding Fitzgerald.
Two witnesses saw the shooting. Fitzgerald testified that defendant raised the gun and purposely shot it. Defendant claimed he brought the gun for protection; that he was fearful of the large number of teenagers who hung around the Ratcliff household. He further claimed he did not determine whether the gun was loaded. He asserted that the shooting was accidental and occurred as he set the weapon on a step leading up to the Ratcliff home. An uninvolved witness testified that the shooting followed a heated discussion of some five to ten minutes between defendant and the deceased. She further testified that she did not see defendant aim it at the deceased.
After the fatal shot was fired, the defendant, according to the testimony of a number of witnesses, entered the house still carrying the weapon. He was heard by one witness to say he was “tired of all this”, apparently referring to the continuing altercations between the families. He was also heard to say, I’ll kill all the sons-of-bitches in here * * * and go to jail”. After the killing, he threatened the deceased’s mother and she was heard to beg for her life because she had other children to raise.
The ease was submitted to the jury on the charge of first-degree murder and all the lesser included offenses.
It is not claimed that the trial court did not properly define all the other offenses correctly. The infirmity claimed is the insufficiency of the charge as to the elements of first-degree murder, especially a definition or explanation of the terms “premeditation” and “deliberation”.
At the outset, we are obligated to distinguish this case from People v Morrin, 31 Mich App 301 (1971). The critical language in Morrin is found on page 336. We quote:
“Having determined that the trial judge erred only in submitting the issue of first-degree murder to the jury, we turn to the disposition of this case.” (Emphasis supplied.)
Such is not the case here, nor does defendant claim it to be. There was sufficient testimony adduced to carry the question of guilt of murder in the first degree to the jury. Hence, Morrin is not controlling here.
We address ourselves now to the stated questions. The first is thus phrased: “Must the court instruct on all the elements of the crime?” Of course, the trial court is obligated so to do. The real question, however, is not whether the trial court must do so, the question is, “did he ?”
The second stated question also contains its own answer. We quote: “Was the failure to instruct as to premeditation prejudicial to the defendant?” If there were, in fact, a failure to instruct as to premeditation in a first-degree murder charge, it would obviously be prejudicial to the defendant.
The question presented is: Did the trial judge adequately and sufficiently define the elements of mur der in the first degree, where the charged killing was not committed in the perpetration of or attempt to perpetrate one of the statutorily enumerated major felonies?
It is fundamental, axiomatic, and settled beyond peradventure of discussion that the distinction between first-degree murder, as charged in this case, and second-degree murder is premeditation. Deliberation is only another way of saying the same thing. We choose to use premeditation as encompassing deliberation. Useless synonyms don’t clarify — they only confuse.
This is what the trial judge had to say about the foregoing triune verbal concept of premeditation.
“The principle points to be discussed in this case are the felonious homicides, the homicides which are punishable, and they are murder in the first degree, murder in the second degree and voluntary manslaughter.
“Now we will therefore take up the first, the elements of the crime of murder in the first degree.
“A portion of the definition of the Statute which I read to you would not apply to any of the claimed facts in this case, because the killing was not done in the perpetration of one of the four major felonies: robbery, arson, rape or burglary. Therefore, the only portion of our Statute which defines murder in the first degree which applies here is where the hilling is claimed to have been done with deliberation, premeditation, cmd malice.” (Emphasis supplied.)
The only other reference to premeditation was:
“Now again, to recapitulate, in murder in the first degree, it is necessary that there be deliberation, premeditation, and malice.”
Except as to this precise point, the court’s charge evokes no criticism. So the question really gets down to whether or not, in the ease at bar, the jury was sufficiently instructed as to the elements of first-degree murder when the trial judge said premeditation was an essential ingredient — was he required to explain the term further ?
Morrin, supra, in what must be considered dicta, recommends further explanation.
We hold the instruction was legally sufficient. This is not to say that we do not encourage the trial bench, whether requested or not, to expand upon the everyday meaning of “premeditation.” In the technical sense, the claimed error, if any, was not preserved. There was no objection to the charge. The issue cannot first be raised on review. People v McClure, 29 Mich App 361 (1971).
More important to us, however, is the overriding question: Was there a miscarriage of justice?
This is crucial because by statute we are admonished that:
“No judgment or verdict shall be set aside or reversed or a new trial granted by any court of this state in any criminal case, on the ground of misdirection of the jury * * * unless * * * it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.” MCLA 769.26; MSA 28.1096. (Emphasis supplied.)
We find no miscarriage of justice. We have read the record with extreme care. We are not convinced that had the charge been more expansive as to the element of premeditation a different result would have been reached by the jury. The total record supports the verdict. The question was properly one of fact for the jury. We do not interfere.
Affirmed.
All concurred. | [
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Per Curiam.
Plaintiffs instituted this action to have property held by defendant Harold Joseph Fick be declared held in trust for the estate of Harold Lee Fick, that the estate be ordered sold, and the proceeds from such sale be paid to the plaintiffs and defendants as co-owners of the property. That the estate repay the defendant, Harold Joseph Fick, for paying the mortgage against the property. The trial court entered a judgment for the defendants.
The only issue on appeal is whether a cotenant of a piece of property owned in a tenant-in-common relationship can purchase the property at a mortgage foreclosure sale so that title to the property vests in the eotenant as sole owner.
The trial judge, sitting without a jury, found the following pertinent facts:
(1) There was no agreement between Harold Joseph Fick and anyone else that he would bid in the property for the mutual benefit of himself and the other heirs.
(2) It does not appear that Harold Joseph Fick did anything to cause anyone else to believe he was acting for anyone else in bidding in the property at the sale.
(3) All of the heirs knew, or with the exercise of reasonable diligence would have known, that someone would bid in the property at the sale and that the equity of redemption would expire on November 5,1965.
(4) None of the other heirs have made any kind of a tender to Harold Joseph Fick at anytime, either before or after commencement of this suit.
The suit was not commenced until July 8, 1966.
Our review of the record supports the trial court’s findings of facts, and this Court will not disturb those findings as they are not clearly erroneous. Grand Rapids Asphalt Paving Co v Wyoming, 29 Mich App 474 (1971); Dixon v Shiner, 12 Mich App 573 (1968); Miller v Department of State Highways, 30 Mich App 64 (1971).
We find that the Court’s decision in Reed v Reed, 122 Mich 77 (1899), controls the case now before the Court. At pages 78-79, the Supreme Court stated:
“The law also gave the right to his co-tenants to share in the benefits of that sale by contribution. They did not do this, but seek to impose upon Mr. Reed all the cost and risk. If the property should not sell for sufficient at the sale upon this decree to pay the amount of indebtedness, he will be out all his expenses, and has been subjected to the costs of this suit, while his co-tenants lose nothing and assume no risks. The law does not permit co-tenants to thus speculate with their common property. Law and equity deal with co-tenants after one of them, as he has the right to do, has purchased the outstanding liens or titles. Before co-tenants can take proceedings to secure the benefit of such purchase by another co-tenant, they must do equity, namely, tender or offer to contribute their proportionate shares of the amount paid in purchase of these outstanding liens. Freem Co-Ten § 154; 11 Am & Eng Enc Law, 1083; Lee v Fox, 6 Dana, 17; Brittin v Handy, 20 Ark 381 (73 Am Dec 497); Flagg v Mann, 2 Sumn 523; Buchanan v King’s Heirs, 22 Grat 419; Mandeville v Solomon, 39 Cal 133; Wilmot v Lathrop, 67 Yt 671; Stevens v Reynolds, 143 Ind 467 (52 Am St Rep 422). Co-tenants desiring to share in snch purchase must move promptly; that is, within a reasonable time. The co-tenants in this case have not moved at all, except upon the theory that the purchase by the co-tenant was absolutely void, and that they were not subject to contribution. They have neither done, nor offered to do, equity.”
As in Reed, the plaintiffs “have neither done, nor offered to do, equity”. We, therefore, affirm the trial judge’s decision.
Costs to defendants. | [
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Per Curiam.
This is an appeal from an entry of judgment on behalf of plaintiffs in the Court of Claims, pursuant to a remand from the Supreme Court. In its decision (383 Mich 630, 632 [1970]), the Supreme Court summarized the facts as follows:
“Industrial property in Detroit, known as the Briggs-Meldrum Plant, was bid off at tax sale in May, 1961, to the State of Michigan for unpaid taxes. Title was conveyed to the state by tax deed of the Auditor General dated June 1, 1962. Buildings on the premises caught fire on April 10, 1963. The fire spread to neighboring properties. Plaintiffs paid for losses to such properties and commenced suit in the Court of Claims to recover from the state. That court denied recovery. The Court of Appeals affirmed (13 Mich App 498). We granted leave to appeal (381 Mich 814).”
The Supreme Court reversed this Court and the Court of Claims, and remanded the case to the Court of Claims for entry of judgment on behalf of plaintiffs.
The Court of Claims, pursuant to the Supreme Court order, entered judgment for plaintiffs, and further ruled that interest on the principal amount of the judgments should be paid from the date of the original Court of Claims judgment. From this award of interest, the state appeals and argues that interest should not be computed from the date of the original Court of Claims judgment, but rather from the judgment of the Court of Claims following remand from the Supreme Court. Plaintiff Employers Mutual- Fire Insurance Company argues that, since the Supreme Court held that the fire here in question was a “taking” which the state was constitutionally compelled to compensate, interest should be computed from the date of the taking, i.e., date of the fire, April 10, 1963. Plaintiff Buckeye Union Fire Insurance Company argues in support of the decision of the Court of Claims.
We believe the Supreme Court’s opinion in this case provides the dispositive answer to this appeal. In that case the Supreme Court held that the destruction of the adjoining property was a taking which the state was compelled to compensate under article 13, section 1 of the Constitution of 1908. That constitutional provision states: “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 compensartion therefor being first made or secured in such manner as shall be prescribed by law”. (Emphasis supplied.) The Fifth Amendment to the United States Constitution is, in pertinent part, comparable ;
“Nor shall private property he taken for public use, without just compensation.”
In a case similar to the one at bar (a taking which preceded payment of compensation), the United States Supreme Court determined that “just compensation” demanded that the individual whose property was taken, if he is not paid at the time of the taking, is entitled to interest from the date of the taking to the date of compensation. Seaboard Airline R Co v United States, 261 US 299; 43 S Ct 354; 67 L Ed 664 (1923).
The Michigan Constitution of 1908 expressly provides that payment shall he contemporaneous with the taking. If the taking precedes the payment of compensation, it is necessary that interest run from the time of taking to the time of payment. The Michigan Supreme Court so implied in the case of Campau v Detroit, 225 Mich 519, 525 (1923). The Supreme Court there stated that “ * * * there can be no interest under the constitutional prohibition [Const 1908, art 1, § 13] until there is a ‘taking’ # # # V
The “taking” herein was the fire on April 10,1963. Interest shall be computed, at the statutory rate, from that date until the date of payment.
Remanded for award of interest consistent with this opinion. No costs. | [
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Per Curiam.
Defendants appeal by leave granted from preliminary injunctions entered by the Wayne Circuit Court on April 27, 1992. The injunctions prevent defendants from laying off employees of the Lafayette Clinic, from eliminating certain programs, and from otherwise implementing a plan to reduce the size and the nature of services offered at Lafayette Clinic. Defendants are affirmatively required by the injunctions to reopen admissions, to readmit patients previously discharged or transferred pursuant to the downsizing plan, and to otherwise maintain the staffing and operations of the clinic as they existed before December 1991, when the downsizing plan was announced.
Finding no error, we affirm the circuit court’s grant of preliminary injunctive relief.
i
The circuit court made the following findings of fact. On January 16, 1991, the Governor issued Executive Order 1991-5, detailing his plan for expenditure reductions for fiscal year 1990-91. The executive order proposed the closure of Lafayette Clinic, the transfer of its patients, and apportionment of its service area to remaining state psychiatric hospitals. The executive order requested amendments of portions of Chapter 9 of the Mental Health Code, MCL 330.1900 et seq.; MSA 14.800(900) et seq. In particular, the Governor requested amendments of the following sections:
Sec. 900. The department of mental health shall maintain in the city of Detroit a psychiatric hospital and outpatient clinic known as Lafayette clinic.
Sec. 902. The department shall designate a director of the Lafayette clinic who shall be a qualified psychiatrist with demonstrated ability as a teacher and administrator. The director shall have complete supervision and control of the operation and personnel of the clinic.
Sec. 904. The department is authorized to establish in the Lafayette clinic a program especially designed to train personnel for the field of mental health, including such specialties as psychiatry, neurology, psychiatric social work, clinical psychology) psychiatric nursing, and others; and to conduct studies and research programs into the nature, cause, and methods of prevention, treatment, and care of mental and emotional disorders and disturbances. The clinic shall conduct a program which includes both an inpatient and outpatient service for those in need of psychiatric care and treatment.
The Governor requested that § 900 be amended to substitute "may” for "shall” and to eliminate the words "psychiatric hospital and outpatient,” thus transforming a statute mandating the maintenance of a psychiatric hospital and outpatient clinic into a statute permitting maintenance of a clinic in Detroit. The Governor requested that § 902 be amended to substitute “may” for the first "shall.” Finally, the Governor requested that § 904 be amended by deleting the last sentence, which contains the only mandatory language in that section.
The House Appropriations Committee rejected the executive order and the statute was not amended.
In its budget proposals for fiscal year 1991-92, the Department of Mental Health (dmh) recommended to the Governor that Lafayette Clinic be closed, that thirty research beds be moved to the Detroit Psychiatric Institute, and that the research activities conducted at the clinic be transferred to Wayne State University (wsu). This proposal was consistent with a memorandum dated January 25, 1991, from dmh’s director of the Bureau of Hospitals to James Haveman, Jr., director of dmh, which stated that the clinic should be closed because of "the restructuring and efficiencies occurring throughout the mental health system and other state departments.”
It is unknown whether this budget proposal was included in the budget submitted by the Governor to the Legislature. In any event, on October 11, 1991, the Legislature enacted and the Governor signed HB 4582, 1991 PA 122, appropriating funds for dmh for fiscal year 1991-92. In addition to general appropriations for various services or functions performed by dmh, the act provides specific appropriations for certain mental health facilities. In particular, the act appropriates $12,500,100 for operation of Lafayette Clinic, describing the clinic as having an average population of 81 patients and 276 full-time equated classified positions.
On December 4, 1991, dmh announced a plan to downsize Lafayette Clinic to thirty-two beds to be used primarily for research, as opposed to medical treatment, purposes. The plan called for three of five wards to be closed: one adult ward, the children’s ward, and the geriatric ward, leaving one adult and one adolescent ward. Of 270 staff positions, 160 would be eliminated through layoffs. Outpatient clinic and training functions would continue, but research functions would be transferred to wsu. On December 11, 1991, dmh began implementing the plan by cutting off admissions to the three wards scheduled for closure. On January 13, 1992, dmh submitted a request to the Department of Management and Budget to "unallot” the clinic’s appropriation for the current fiscal year in the amount of $3.5 million. ("Unallotted” funds are not available for expenditure and lapse back to the general fund at the end of the fiscal year unless "reallotted.”) Layoff notices were issued to clinic employees on January 29 and 31, 1992. In addition, on January 31, dmh signed a contract with wsu to conduct mental health research functions at Lafayette Clinic. Finally, on February 26, dmh began transferring patients out of the clinic.
Plaintiff union filed its complaint on March 6, 1992, seeking permanent injunctive and declaratory relief and a writ of mandamus, and also requesting a temporary restraining order or preliminary injunction to prevent the layoff of union members scheduled to occur on March 14, 1992. The union argued that defendants’ actions violated constitutional provisions regarding separation of powers and the proper manner of reducing expenditures of funds already appropriated, and that the actions violated provisions of the Mental Health Code specifically requiring dmh to maintain Lafayette Clinic. The union also sought injunctive relief to preserve the status quo pending arbitration of two grievances filed pursuant to a collective bargaining agreement between the union and defendants. In those grievances, the union challenged the propriety of layoffs and alleged improper subcontracting of bargaining unit work to nonbargaining-unit members through the transfer of research functions to wsu.
On March 11, 1992, the individual plaintiffs filed their complaint seeking similar relief under twelve separate counts.
The circuit court issued a number of temporary restraining orders and held hearings on seven days in March and April. On April 27, 1992, the court issued the preliminary injunctions at issue here and a twenty-six-page opinion in support of those orders, finding that all plaintiffs had satisfied the requirements for a preliminary injunction mandated by Michigan State Employees Ass’n v Dep’t of Mental Health, 421 Mich 152, 157-158; 365 NW2d 93 (1984). The circuit court held that the union had shown a substantial likelihood of success on the merits of its claims, and that the other plaintiffs had shown a substantial likelihood of success on the merits of counts i, x, xi, and xn of their amended complaint, which respectively allege violation of state constitutional provisions, violation of the Mental Health Code, violation of that portion of 1991 PA 122 that specifically appropriates funds for Lafayette Clinic, and entitlement to equitable relief.
The circuit court found that union members would suffer irreparable harm in the absence of an injunction, because they would be forced to make probably irrevocable employment decisions if their layoffs were not prevented. The court also found that the union would suffer irreparable harm to its status as exclusive collective bargaining agent if the layoffs were allowed to occur before exhaustion of the grievance-arbitration procedure.
The circuit court found that the individual plaintiffs and the individuals represented by plaintiff Mental Health Association of Michigan would suffer irreparable harm if they were discharged from, not allowed to return to, or not allowed to seek treatment at Lafayette Clinic because of defendants’ downsizing plan.
Finding that plaintiffs would suffer greater harm if the injunctions were not granted than defendants would suffer if the injunctions were granted, and that the public interest would not be harmed if preliminary injunctive relief were granted, the court enjoined defendants from implementing the downsizing plan and ordered the clinic returned to the status existing before implementation of the downsizing plan.
Defendants filed emergency applications for leave to appeal with this Court on March 23, 1992, as well as motions for immediate consideration and for a stay of proceedings. This Court granted the motions for immediate consideration, but held the applications and motions for stay in abeyance pending completion of the hearings before the circuit court. After the circuit court issued its orders and opinion on April 27, 1992, this Court granted the applications for leave to appeal but denied the motions for stay on April 29, 1992, setting an accelerated schedule for briefing. The Court also ordered that the cases be submitted for decision together. After hearing oral argument on May 22, 1992, and after reviewing the briefs of the parties and amici curiae, we affirm.
ii
Plaintiffs argue that defendants’ plan to downsize the Lafayette Clinic violates a number of provisions of the Michigan Constitution. Const 1963, art 3, § 2 provides:
The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.
Article 5, § 19 provides:
The governor may disapprove any distinct item or items appropriating moneys in any appropriation bill. The part or parts approved shall become law, and the item or items disapproved shall be void unless re-passed according to the method prescribed for the passage of other bills over the executive veto.
Article 5, § 20 provides:
No appropriation shall be a mandate to spend. The governor, with the approval of the appropriating committees of the house and senate, shall reduce expenditures authorized by appropriations whenever it appears that actual revenues for a fiscal period will fall below the revenue estimates on which appropriations for that period were based. Reductions in expenditures shall be made in accordance with procedures prescribed by law. The governor may not reduce expenditures of the legislative and judicial branches or from funds constitutionally dedicated for specific purposes.
Plaintiffs argue that defendants have overstepped their responsibility to execute the law and have instead attempted to usurp the place of the Legislature in creating law and appropriating funds, noting the specific appropriation for Lafayette Clinic in 1991 PA 122. Plaintiffs argue that defendants are in effect attempting to amend unilaterally the Mental Health Code’s provisions regarding Lafayette Clinic, after failing to gain legislative agreement to such amendments. They also contend that defendants’ actions amount to an improper partial line-item veto of provisions in the appropriation bill specifically funding the clinic. Finally, they claim that the downsizing plan is unconstitutional because it amounts to a reduction in appropriations without approval of the appropriating committees of the House and Senate.
Defendants respond by noting that the first sentence of art 5, § 20 provides that no appropriation is a mandate to spend. Defendants argue that appropriations only set the outer limits for spending, leaving it to the Governor in his discretion to determine how much needs to be spent to achieve the statutory goal. Defendants argue that dmh is given great discretion in the Mental Health Code with regard to patient levels at facilities, as well as their structure and function. Although conced ing that the Mental Health Code singles out the Lafayette Clinic for special attention, defendants contend they have not ignored the statute, but, rather, have exercised their discretion in executing the law within the parameters of the statute. They contend that there was no need to seek approval from the appropriations committees because no change in the amount appropriated to Lafayette Clinic was sought. Instead, defendants are merely restructuring the operations of Lafayette Clinic, as well as other mental health facilities, in order to achieve economies and efficiencies and thereby deliver services at lower cost, thus saving a portion of the amount appropriated for such purposes.
We agree with the circuit court that plaintiffs have shown a substantial likelihood of success on the merits of their constitutional claims. We reach this conclusion for the following reasons.
The Legislature enacts laws and appropriates funds. The executive branch of the government executes the laws and spends appropriated funds for designated purposes. Although the executive branch possesses a certain amount of discretion, it may not under the guise of executing the laws frustrate the Legislature’s intent. Kendall v United States, 37 US (12 Pet) 524, 613; 9 L Ed 1181 (1838). The executive branch possesses no inherent constitutional power to decline to spend in the face of a clear legislative intent and statutory directive to do so. However, where funds are not explicitly earmarked and the executive branch is not specifically required to provide services out of those funds, the Governor may exercise discretion in distributing appropriated funds within a given department. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America v Donovan, 241 US App DC 122, 128-130; 746 F2d 855 (1984).
In this case, the Legislature in 1991 PA 122 appropriated over $1.3 billion for the Department of Mental Health and singled out specific institutions, including Lafayette Clinic, for specific appropriations. This constitutes a clear indication of the Legislature’s intent. Even if specific appropriations for other institutions are considered as nothing more than an expression of legislative preference, the specific appropriation for Lafayette Clinic must be viewed in the context of its special statutory status as an institution that dmh is required to operate. We conclude that defendants exceeded their discretion and constitutional authority by ignoring the clear legislative intent and statutory directive to spend.
We also agree with the circuit court that plaintiffs are likely to prevail on their claim that defendants’ actions cannot be justified under art 5, § 20. The first sentence of that section, "No appropriation shall be a mandate to spend,” is "intended to cover situations in which unforeseen efficiencies and economies might become possible.” 2 Official Record, Constitutional Convention 1961, p 3381. For example, the occurrence of an unforeseen mild winter might result in savings of funds appropriated for snow removal, and the first sentence of art 5, § 20 makes clear that the executive branch is not required to spend such funds unnecessarily simply because they were appropriated by the Legislature. However, defendants cannot justify reducing expenditures of funds appropriated for Lafayette Clinic because of "unforeseen efficiencies and economies.” Defendants have not challenged on appeal the circuit court’s finding of fact that the economies and efficiencies justifying the December 4, 1991, downsizing plan were the same economies and efficiencies identified in January 1991. These economies and efficiencies cannot have been unforeseen when the Governor signed the mental health appropriation bill in October 1991, which contained specific appropriations for Lafayette Clinic. Therefore, defendants cannot justify ignoring the Legislature’s mandate to spend pursuant to the first sentence of art 5, § 20.
Defendants have not argued that expenditure of funds appropriated for Lafayette Clinic must be reduced because it appears that actual revenues will fall below revenue estimates. For this reason, and because defendants have not obtained approval from the appropriations committees, the second sentence of art 5, § 20 is not applicable.
Defendants note that the third sentence of art 5, §20 requires that reductions in expenditures "be made in accordance with procedures prescribed by law.” Section 372(4) of the Management and Budget Act, MCL 18.1372(4); MSA 3.516(372X4), provides:
Allotments may be reduced or adjusted by the state budget director as a result of implementing measures of administrative efficiency, including the abolishment of positions by appointing authorities. An action taken under this section shall be reported to the appropriations committees within 15 days after the action is taken.
Defendants argue that their actions comport with art 5, § 20 because the executive branch is empowered by the Legislature to reduce allotments pursuant to § 372(4).
We reject defendants’ argument for the following reasons. This Court has previously held that the Legislature intended the Management and Budget Act to occupy the whole field of the budget process. House Speaker v State Administrative Bd, 190 Mich App 260, 274; 475 NW2d 440 (1991). At issue in House Speaker were provisions of the act that provide mechanisms for adjusting mismatched appropriations and expenditures. Id. at 272. We now hold that those provisions are the "procedures prescribed by law” to implement the second sentence of art 5, § 20, and that § 372(4) of the Management and Budget Act implements the first sentence’s directive that appropriated funds need not be spent. For this reason, we further hold that § 372(4) should be interpreted to require that the administrative efficiencies identified by the state budget director be "unforeseen” within the meaning of the first sentence of art 5, § 20.
Finally, we also agree that plaintiffs have demonstrated a substantial likelihood of success on the merits of their claim that defendants’ downsizing plan would amount to a partial line-item veto of the specific appropriations for Lafayette Clinic. The Governor’s veto power, émbodied in art 5, § 19, is modeled on Const 1908, art 5, § 37, which did not empower the Governor to reduce or modify any specific item in an appropriation bill. The Governor must either accept a line item or veto it. Wood v State Administrative Bd, 255 Mich 220, 223-225; 238 NW 16 (1931).
For these reasons, we conclude that plaintiffs have shown a substantial likelihood of success on the merits of their constitutional claims.
iii
Plaintiffs claim that the downsizing plan violates §§ 900, 902, and 904 of the Mental Health Code. They argue that a downsized clinic could not carry out the functions required by these sections, and that the contract with wsu to conduct research at the clinic violates the mandate of § 902 that the director of the clinic have complete supervision and control of the operation and personnel of the clinic.
Defendants argue that although the clinic director’s supervision and control might be reduced under the downsizing plan, they remain consistent with the functions performed by directors of other mental health facilities. Defendants argue that the director continues to exercise complete supervision and control of the operation and personnel of the clinic, although certain operations formerly performed by clinic personnel are now performed by wsu personnel, e.g., research. Defendants note that §904 only requires the clinic to conduct a program including both inpatient and outpatient services, while otherwise authorizing dmh to establish at the clinic a training and research program. Defendants argue that § 904 is not violated by the downsizing plan because the clinic continues to provide both inpatient and outpatient services, albeit at a reduced level.
We agree with the circuit court that plaintiffs have shown a substantial likelihood of success on the merits of their statutory arguments for the following reasons.
Section 904 allows, but does not require, dmh to establish training and research programs at the Lafayette Clinic. If such programs are established, however, the director of the clinic must have "complete supervision and control” of them, inasmuch as § 902 does not distinguish between required and permissible programs at the clinic. To the extent that defendants’ contract with wsu reduces the director’s supervision and control of the operation and personnel of the clinic, it violates § 902.
Section 900 requires dmh to maintain "a psychiatric hospital and outpatient clinic known as La fayette clinic.” The last sentence of § 904 provides that the clinic "shall conduct a program which includes both an inpatient and outpatient service for those in need of psychiatric care and treatment.” Section 908(2) provides:
The department, in order to facilitate the conducting of training and research programs, shall promulgate rules or adopt policies controlling the number and type of patients to be admitted to the clinic. The department may, as it deems advisable, promulgate or adopt such other rules or policies which regulate admission and are consistent with the provisions of this act or other provisions of law, and required by rules and policies.
Section 908(2) clearly gives dmh the power to control the number and type of patients at the clinic in order to facilitate any training and research programs established at the clinic. Dmh also has general statutory power to control the population at mental health facilities. However, this power is not absolute. The power to control the number and type of patients is limited in part by the requirément that the clinic include both inpatient and outpatient services, as defendants themselves recognize. Defendants’ power is limited even further, inasmuch as the last sentence of § 904 requires the clinic to provide inpatient and outpatient service "for those in need of psychiatric care and treatment,” and § 900 contemplates that the clinic function as a "psychiatric hospital and outpatient clinic.” Because defendants’ downsizing plan effectively restructures Lafayette Clinic into a research-only facility, it violates the legislative intent embodied in the mandatory provisions of §§ 900 and 904.
Although defendants are entitled to deference in the manner in which they carry out their statu tory mandates, and must be given wide discretion in the means chosen to provide the services required by statute, the downsizing plan goes too far and violates the legislative intent embodied in the Mental Health Code that Lafayette Clinic function as a psychiatric hospital providing both inpatient and outpatient services. The intent of the Legislature was reaffirmed in the specific appropriations for an eighty-one-bed facility at Lafayette Clinic in 1991 PA 122.
IV
The circuit court made the following findings of fact. On January 29, 1992, fifty-two union-represented employees of the clinic received layoff notices that stated that they were being laid off because their positions were abolished. On January 31, 1992, twenty additional union-represented employees received layoff notices that stated that the reason for layoff was "lack of funds and/or reduction in spending authorization.” The union filed a grievance challenging the layoffs, and also filed a grievance challenging the transfer of research activities from the clinic to wsu, allegedly in violation of the subcontracting clause of the parties’ collective bargaining agreement. The court found that there was probable merit to both grievances and concluded that the union had shown a substantial likelihood of success on the merits of its contractual claims.
Defendants have not responded to the merits of the contractual claims, but, rather, argue that the economic losses to which union-represented employees are exposed are not the sort of irreparable harm that would justify granting an injunction. We agree. Economic injuries are not irreparable because they can be remedied by damages at law. Acorn Building Components, Inc v UAW Local 2194, 164 Mich App 358, 366; 416 NW2d 442 (1987). In addition, it is generally not proper for a circuit court to use a preliminary injunction to reinstate a terminated employee, or to prevent the layoff of an employee, pending the exhaustion of the employee’s grievance remedy. Michigan State Employees Ass’n, supra.
However, we also agree with the union that an injunction in aid of arbitration is appropriate in this case to preserve the status quo and prevent any award by the arbitrator in favor of the union from being rendered a nullity.
This Court has long held that a preliminary injunction may be appropriate in aid of the jurisdiction of the Michigan Employment Relations Commission when a party to a collective bargaining agreement files unfair-labor-practice charges regarding, for example, alleged improper subcontracting that would become irrevocable and beyond the power of merc to remedy in the absence of an injunction. Van Buren Public School Dist v Wayne Circuit Judge, 61 Mich App 6, 17; 232 NW2d 278 (1975). In addition, the United States Supreme Court has held that an injunction may be appropriate in aid of arbitration, at least in cases involving compulsory arbitration under the Railway Labor Act, 45 USC 151 et seq. Brotherhood of Locomotive Engineers v Missouri-K-T R Co, 363 US 528; 80 S Ct 1326; 4 L Ed 2d 1379 (1960).
Under the circumstances of this case, where the power of an arbitrator to fashion a remedy in the event the grievances are upheld might be frustrated in the absence of a preliminary injunction, and where plaintiffs in the companion case have demonstrated irreparable harm in the absence of an injunction (see part v infra), we hold that the circuit court did not err in granting the union’s request for an injunction in aid of arbitration.
v
The circuit court found as fact that several of the individual plaintiffs in Docket No. 150367 suffered a deterioration in their condition when discharged pursuant to the downsizing plan, but have stabilized after they were readmitted to Lafayette Clinic pursuant to the mandates of temporary restraining orders. The circuit court also found that several of the plaintiffs threatened with discharge under the downsizing plan would probably experience a worsening of their condition, given the present condition of the mental health system in this state and given Lafayette Clinic’s expertise in dealing with the hard-to-treat mental health patient. Defendants have not demonstrated that these findings of fact are clearly erroneous. MCR 2.613(C). On the basis of these findings, we hold that the circuit court did not err in concluding that plaintiffs in Docket No. 150367 demonstrated likely irreparable harm in the absence of an injunction.
Defendants complain that the injunction is too broad, noting that this is not a class action, and contending that any injunction should be limited to those individual plaintiffs who actually demonstrated probable irreparable harm. Defendants did not, however, challenge the standing of plaintiff Mental Health Association of Michigan to seek injunctive relief on behalf of its membership, which is comprised of mental health services consumers, family members of mental health patients, providers of mental health services, and mental health advocacy groups. Moreover, given the nature of the constitutional and statutory claims made by plaintiffs, we do not believe that the injunctions are too broad.
vi
We conclude that plaintiffs have shown a substantial likelihood of success on the merits of their constitutional and statutory claims. We also find a significant likelihood of irreparable harm to plaintiffs in the absence of the injunctions. Because the likely harm to plaintiffs in the absence of the injunctions outweighs any harm to defendants if the injunctions are allowed to stand, and because the public interest is not harmed by the injunctions, we affirm the decision of the circuit court.
Affirmed.
We are indebted to counsel for the union for suggesting this example at oral argument.
We note that the injunctions require defendants to continue the training and research functions of Lafayette Clinic as they existed before December 4, 1991. Training and research at the clinic are authorized by statute, but are not mandated. Because defendants have not challenged this provision in the injunctions, we express no opinion regarding its propriety. | [
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Doctoroff, J.
Defendant appeals as of right a circuit court order granting plaintiffs’ motion for summary disposition pursuant to MCR 2.116(0(10) and ordering defendant to supply plaintiffs with the unemployment insurance tax rates (contribution rates) for a number of employers. Defendant argues that the contribution rates are exempt from disclosure. We agree and reverse.
Plaintiffs requested, pursuant to the Freedom of Information Act (foia), MCL 15.231 et seq.; MSA 4.1801(1) et seq., that defendant provide them with the contribution rates for a number of employers. The contribution rate is the rate, expressed as a percentage of payroll, used to calculate the contribution an employer must make for continued membership in the unemployment compensation system. An individual employer’s rate is calculated by applying the complex formula set forth at MCL 421.19(a); MSA 17.520(1), using information that is obtained from the employer.
Defendant denied plaintiffs’ request, determining that the information was exempted from disclosure by § 13(l)(d) of the foia, MCL 15.243(l)(d); MSA 4.1801(13)(l)(d), by § 11(b) of the Michigan Employment Security Act (mesa), MCL 421.11(b) (1); MSA 17.511(b)(1), and by 1980 AACS, R 421.10(1). Plaintiffs then filed this action, seeking an order requiring defendant to provide the requested information. Both parties filed motions for summary disposition. The trial court ruled that the requested information was not exempt from disclosure and granted plaintiffs’ motion.
Defendant argues that because the formula for determining the contribution rates utilizes information obtained from employers that is exempt from disclosure, the rates themselves are exempt from disclosure. Plaintiffs argue that the contribution rates are not exempt, because they do not rely solely on exempt information.
A motion for summary disposition pursuant to MCR 2.116(C)(10) may be granted where, except for the amount of damages, there is no genuine issue concerning any material fact and the moving party is entitled to judgment as a matter of law. A motion for summary disposition under MCR 2.116(C)(10) tests the factual support for a claim. Giving the benefit of reasonable doubt to the party opposing the motion, the court must determine whether a record might be developed that would leave open an issue upon which reasonable minds might differ. Amorello v Monsanto Corp, 186 Mich App 324, 330; 463 NW2d 487 (1990).
The purpose of the foia is to provide public access to public records in order to insure that an informed public may fully participate in the democratic process. MCL 15.231(2); MSA 4.1801(1)(2); State Employees Ass’n v Dep’t of Management & Budget, 428 Mich 104, 109; 404 NW2d 606 (1987). The foia requires the disclosure of all public records that are not exempt under MCL 15.243; MSA 4.1801(13). Hagen v Dep’t of Ed, 431 Mich 118, 123; 427 NW2d 879 (1988). The exemptions to disclosure are to be narrowly construed. Id., p 124. When a public body denies a request, it bears the burden of proving that the requested information falls within one of the act’s exemptions. Id.; Booth Newspapers, Inc v University of Michigan Bd of Regents, 192 Mich App 574; 481 NW2d 778 (1992).
Section 13(l)(d) of the foia allows a public body to exempt from disclosure "[r]ecords or information specifically described and exempted from disclosure by statute.”
Section 11(b)(1) of the mesa protects the confidentiality of certain information by providing, in relevant part:
Information obtained from any employing unit or individual pursuant to the administration of this act, and determinations as to the benefit rights of any individual shall be held conñdential and shall not be disclosed or open to public inspection other than to public employees in the performance of their official duties pursuant to this act in any manner revealing the individual’s or the employing unit’s identity. [Emphasis added.]
Where the language of a statute is clear and unambiguous, judicial interpretation is precluded and this Court should not look beyond the ordinary meaning of the unambiguous language in giving effect to the statute. Wills v Iron Co Bd of Canvassers, 183 Mich App 797, 801; 455 NW2d 405 (1990). However, if the statute is ambiguous, this Court must determine and give effect to the intent of the Legislature. Pemberton v Dharmani, 188 Mich App 317, 320; 469 NW2d 74 (1991). Statutory language should be given a reasonable construe tion considering its purpose and the object sought to be accomplished. Wills, supra.
The wording of § 11(b)(1), when applied to the facts of this case, is ambiguous. When determining the purpose of a statute, a court may examine many factors, including administrative interpretations of the statute. Interpretations of a statute by the agency responsible for its administration are accorded deference by the courts. ADVO-Systems, Inc v Dep’t of Treasury, 186 Mich App 419, 426; 465 NW2d 349 (1990); Attorney General v American Way Life Ins Co, 186 Mich App 679, 683; 465 NW2d 56 (1991), quoting Szabo v Ins Comm’r, 99 Mich App 596, 598; 299 NW2d 364 (1980).
Initially, we note that the mesa was enacted to provide for the common good and to lighten the burden of involuntary unemployment on the unemployed worker and on the unemployed worker’s family by encouraging employers to provide stable employment and by providing for a fund to provide benefits to persons unemployed through no fault of their own. MCL 421.2; MSA 17.502. Pursuant to its legislative grant of authority, defendant promulgated 1980 AACS, R 421.10(1), which provides:
All information, files, and records of the Michigan employment security commission reflecting information obtained from an employing unit or individual pursuant to administration of the act by the commission or its agents or representatives shall be held confidential and shall not be disclosed nor open to public or private inspection by anyone, except as hereinafter provided.
We reject plaintiffs’ argument that the rule impermissibly expands the statute. Instead, we find that the rule serves to clarify the meaning of the statute and is consistent with legislative in tent. By providing for confidentiality of information, files, and records that reflect information obtained from employing units, the rule gives effect to the statute’s intent to keep confidential information obtained from employing units. The administrative rule ensures the cooperation of employers and employees that is necessary to achieve the purposes of the mesa.
The formula for determining an employer’s contribution rate utilizes information obtained from the employer that is exempted from disclosure. Consequently, we hold that the contribution rates of employers are exempt from disclosure. The order granting summary disposition to plaintiffs is reversed, and this case is remanded for entry of judgment in favor of defendant.
Reversed and remanded.
Gribbs, P.J., concurred. | [
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Per Curiam.
Plaintiffs, personal representatives of the estate of Marvin R. Brummel, deceased, brought an action in the Kent Circuit Court to quiet title to certain property purchased by the estate and seeking damages from defendants for slander of title. The circuit court, in a declaratory judgment, determined that the estate had acquired the property subject to a 1983 mortgage given by the previous owner to defendants, and granted defendants’ motion for summary disposition of plaintiffs’ claim of slander of title. Plaintiffs appeal as of right, and we affirm.
The property that is the subject of this dispute was originally owned by Jerry and Barbara VanHouten. In 1983, the VanHoutens executed a mortgage on the property in favor of defendants as security for a $20,000 loan. Mr. VanHouten asked defendants not to record the mortgage, and they complied.
In 1984, the VanHoutens granted Marvin and Louise Brummel a mortgage interest in the same property in exchange for Mr. Brummel’s personal guaranty of a $30,000 loan from the Byron Center State Bank. Mr. VanHouten asked Mr. Brummel not to record the mortgage, and he also complied. In an affidavit submitted by defendants, Mr. VanHouten stated that before executing the mortgage to the Brummels he told Mr. Brummel about the existence of the prior unrecorded mortgage held by defendants. Louise Brummel submitted an affidavit stating that she was aware that her husband guaranteed a note for the VanHoutens and that the VanHoutens gave her husband a mortgage on the property. However, she did not know until after her husband’s death in 1987 that her name was included on the mortgage. Louise Brummel stated that she did not receive notice from the VanHoutens regarding the prior unrecorded mortgage.
Mr. Brummel died on February 3, 1987, and the Brummel mortgage was recorded on February 24, 1987. On May 6, 1987, plaintiffs, as personal representatives of Marvin Brummel’s estate, purchased the VanHouten property for $115,000. The deed was recorded on May 7, 1987. Defendants did not record their mortgage on the VanHouten property until October 1987.
Louise Brummel stated in her affidavit that she first became aware of defendants’ mortgage when a title search was done in November 1987, in preparation for the sale of the property. Plaintiffs then brought an action to quiet title and for slander of title. The trial court found that plaintiffs’ interest in the property was subject to the mortgage lien held by defendants. The court reasoned that Marvin Brummel’s notice of the prior mortgage was imputed to his estate. Because Marvin Brummel could not have been a bona fide purchaser, the estate should be placed in the same position. Additionally, the trial court found that Marvin Brummel’s knowledge of defendants’ mortgage could be imputed to Louise Brummel because the second mortgage was also in her name.
i
Actions to quiet title are equitable in nature and are reviewed by this Court de novo. Grand Rapids v Green, 187 Mich App 131, 135; 466 NW2d 388 (1991). The factual findings of the trial court are reviewed for clear error. Id. A court acting in equity "looks at the whole situation and grants or withholds relief as good conscience dictates.” Hunter v Slater, 331 Mich 1, 7; 49 NW2d 33 (1951).
Both parties agree that the analysis of this issue begins with MCL 565.29; MSA 26.547, Michigan’s race-notice statute, which provides in pertinent part:
Every conveyance of real estate within the state hereafter made, which shall not be recorded as provided in this chapter, shall be void as against any subsequent purchaser in good faith and for a valuable consideration, of the same real estate or any portion thereof, whose conveyance shall be first duly recorded.
A good-faith purchaser is one who purchases without notice of a defect in the vendor’s title. Simon v Brown, 38 Mich 552, 555 (1878). See also Lakeside Associates v Toski Sands, 131 Mich App 292, 298; 346 NW2d 92 (1983).
In this case, it is unrefuted that plaintiffs’ decedent, Marvin Brummel, had notice that defendants had a prior unrecorded mortgage on the VanHouten property. Accordingly, he could not be a good-faith purchaser under the statute. Under the circumstances of this case, we do not believe that the trial court clearly erred in finding that plaintiffs, as personal representatives of Marvin Brummel’s estate, were likewise precluded from being good-faith purchasers.
As personal representatives of Brummel’s estate, plaintiffs were responsible for the management and distribution of the estate’s assets. See, e.g., In re Rice Estate, 138 Mich App 261, 269; 360 NW2d 587 (1984). Plaintiffs were acting as personal representatives of the estate when they bought the VanHouten property with estate funds. Although the parties have not cited, and we have not found, any case law addressing the exact issue presented in this case, the precedent we have reviewed indicates that personal representatives traditionally have been held to stand in the place of the decedent with respect to the decedent’s property or claims. Accordingly, we agree with the trial court that it would be inequitable to allow plaintiffs, as the personal representatives of Marvin Brummel’s estate, the status of a good-faith purchaser when Brummel himself would not have qualified for that status.
ii
Next, plaintiffs argue that the trial court erred in dismissing their claim of slander of title. We disagree.
In order to maintain an action for slander of title, a plaintiff must show that the defendant knowingly filed an invalid lien with the intent to cause the plaintiff injury. Stanton v Dachille, 186 Mich App 247, 262; 463 NW2d 479 (1990). In this case, although defendants recorded their mortgage interest after plaintiffs purchased the property, there is no indication in the record that defendants’ mortgage lien is invalid in any way. Accordingly, we conclude that plaintiffs’ claim of slander of title was properly dismissed.
Affirmed.
Although the details of the purchase transaction are not provided in the record, it appears that the mortgage given by the VanHoutens to the Brummels was still outstanding at the time of the purchase.
See, e.g., Arnold v Thompson, 19 Mich 333 (1869) (The estate of a deceased judgment debtor has no better defense to the claims of creditors than the deceased would have had if he had lived.), Detroit v Stafford, 320 Mich 6, 14; 30 NW2d 410 (1948) (An executor of an estate stands in the shoes of his testator with respect to personal property and his ownership is only a continuation of the ownership of the deceased.), Domby v Heath, 327 Mich 29; 41 NW2d 325 (1950) (An administrator of an estate could only deed such title as the intestate had at the time of his death.), In re Traub Estate, 354 Mich 263, 279; 92 NW2d 480 (1958), and Ballard v Southwest Detroit Hosp, 119 Mich App 814, 817; 327 NW2d 370 (1982) (A valid contract entered into by the deceased is binding upon the deceased’s personal representative.). See also MCL 700.613; MSA 27.5613, which provides that where a mortgagee of real estate dies without having foreclosed the mortgage, the personal representative "may foreclose the mortgage, and have any other remedy for the collection of the debt which the decedent would have had if living.” | [
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Per Curiam.
On December 28, 1970, the Attorney General addressed the following letter opinion to the Prosecuting Attorney of Clinton County:
“You have requested my opinion as to whether reapportioning the county board of commissioners as required by Act 261, PA 1966 [MCLA 46.401 et seq; MSA 5.359(1) et seq\, the board of commissioners in counties the population of which on the effective date of Act 261 was less than 75,000 is authorized during a period of 30 days following the publication of the latest official United States decennial census figures of the 1970 federal decennial census to adopt a plan for that purpose.
“Reference to Section 1 of Act 261 as originally enacted discloses said section contained provision therefor. That section has since been amended by Act 153, PA 1968, and Act 137, PA 1969. Each of those amendments continued such provision without change aside from change in the name of that board. The fact that the legislature in reenacting such section, as amended, continued without change such provision evidences the legislative intent that in those counties population of which was less than 75,000 on the effective date of Act 261, the board of commissioners is authorized to draft and adopt such a plan within the 30-day period following publication of the latest official figures of each decennial census.”
The Secretary of State furnished the counties with the Federal census data needed to accomplish reapportionment on January 4, 1972 j pursuant to the foregoing opinion of the Attorney General, the Livingston County Board of Commissioners began the task of reapportionment. The Livingston County Prosecutor, a member of the apportionment commission, immediately filed an action in the Livingston County Circuit Court seeking a declaratory judgment as to the authority of the Board of Commissioners to perform the act of reapportionment. He maintained that MCLA 46.401; MSA 5.359(1) permitted the board of county commissioners in counties of less than 75,000 population in 1960 to reapportion in conformity with the one man/one vote requirements of the statute and decisions of the United States Supreme Court only in the initial reapportionment upon the effective date of the county reapportionment act; thereafter, after each decennial census, the prosecutor maintained that it was the sole responsibility of the apportionment commission to complete the work of reapportionment of the board of county commissioners. The circuit court agreed and designated the apportionment commission as the proper party to reapportion Livingston County. The board of county commissioners has appealed. Because of the important nature of the issue, to the reapportionment of county commissions now being accomplished throughout the state, we have given our immediate attention to the matter.
In an effort to codify apportionment procedures sufficient to effectuate the one man/one vote principle ennunciated in Reynolds v Sims, 377 US 533; 84 S Ct 1362; 12 L Ed 2d 506 (1964), and possibly to anticipate Avery v Midland County, 390 US 474; 88 S Ct 1114; 20 L Ed 2d 45 (1968), the Michigan Legislature adopted 1966 PA 261 (hereinafter cited as the County Apportionment Act). This act provided for the apportionment of county Boards of Supervisors, prescribed the size of said hoards, and indicated the manner of their election. Section 1 of the original act is of primary relevance to the issue presented and read as follows:
“On or before May 15,1967, and in subsequent years within 60 days after the publication of the latest United States official decennial census figures, the county apportionment commission in each county of this state shall apportion the county into not less than 5 nor more than 35 county supervisor districts as nearly of equal population as is practicable and within the limitations of section 2. In counties under 75,000, upon the effective date of this act, the hoards of supervisors of such counties shall have not to exceed 30 days into which to apportion their county into supervisor districts in accordance with the provisions of this act. If at the expiration of the time as set forth in this section a board of supervisors has not so apportioned itself, the county apportionment commission shall proceed to apportion the county under the provisions of this act.” (Emphasis added.)
This section was amended by 1968 PA 153 (given immediate effect June 13, 1968) to read as follows:
“On or before May 15,1967, and in subsequent years within 60 days after the publication of the latest United States official decennial census figures, the county apportionment commission in each county of this state shall apportion the county into not less than 5 nor more than 35 county supervisor districts as nearly of equal population as is practicable and ■within the limitations of section 2. In counties under 75,000, upon the effective date of this act, the hoards of supervisors of such counties shall have not to exceed 30 days into which to apportion their county into supervisor districts in accordance with the provisions of this act. If at the expiration of the time as set forth in this section a board of supervisors has not so apportioned itself, the county apportionment commission shall proceed to apportion the county under the provisions of this act. Notwithstanding any other provision of law, the initial plan for apportionment of the boards of supervisors shall be filed not later than 4 p.m. June 25,1968. In any county in which a plan is not filed by 4 p.m. on June 25, 1968, 7 supervisors shall be elected at large in 1968 for 2-year terms. In 1968 only, the deadline for filing nominating petitions or filing fees shall be 4 p.m. July 2, 1968. Because of the necessity of insuring orderly election procedures for the year 1968, in no event will litigation affect, alter, change, amend or delay any apportionment plan adopted under this act insofar as 1968 supervisor elections are concerned.” (Emphasis added.)
Section 1 was again amended by 1969 PA 137 (effective March 20, 1970), and presently states:
“Within 60 days after the publication of the latest United States official decennial census figures, the county apportionment commission in each county of this state shall apportion the county into not less than 5 nor more than 35 county commissioner districts as nearly of equal population as is practicable and within the limitations of section 2. In counties under 75,000, upon the effective date of this act, the hoards of commissioners of such counties shall have not to exceed 30 days into which to apportion their county into commissioner districts in accordance with the provisions of this act. If at the expiration of the time as set forth in this section a board of commissioners has not so apportioned itself, the county apportionment commission shall proceed to apportion the county under the provisions of this act.” (Emphasis added.)
The issue which we must determine is whether § 1 of the County Reapportionment Act granted county boards of commissioners in counties having less than 75,000 population in 1960 a 30-day period following publication of each official United States decennial census in which said boards could apportion themselves, or whether this option was restricted to the 30-day period following the effective date of the original act. Either result is plausible upon a simple reading of the language of § 1. Where, as here, statutory language is susceptible to two differing interpretations and is of sufficiently indefinite meaning that reasonable minds can and do disagree as to its true construction, interpretation of the statute in question is a proper function of this Court.
Where a statute is sufficiently ambiguous to necessitate judicial interpretation, the primary duty of the courts is to ascertain the intention of the Legislature by examination of the statutory language, the subject matter under consideration, the scope and purpose of the act, other relevant statutes, and legislative history. Crawford v School District No 6, 342 Mich 564 (1955). All other rules of statutory construction are ancillary to this primary duty, and serve only as guides to assist the courts in determining legislative intent with a greater degree of certainty. Van Antwerp v State, 334 Mich 593 (1952).
1. Intent As Manifested in Legislative Proceedings.
One important method of determining legislative intent in cases of statutory ambiguity is to review legislative journals which chronicle the legislative history of the act in question. Liquor Control Commission v Fraternal Order of Eagles, Aerie No 629, 286 Mich 32 (1938). Amendments, modifications, and changes in the frame of a bill during its passage may also be considered as evidence of intent. 82 CJS, Statutes, § 355, p 752. Since legislative proceedings are especially indicative of intent in the instant case, a somewhat detailed review of legislative history is necessary.
On February 17, 1966, the House Committee on Apportionment reported out its substitute apportionment bill with recommendation for adoption. After certain amendments were adopted the substitute bill was passed on third reading. Representative Stempien, chairman of the Committee on Apportionment, declared that the bill was designed to reorganize “Michigan’s archaic system of county government” by establishing “workable machinery under which the rule of equal population apportionment for county government can be implemented immediately”. Many of the votes against the bill were explained by the fact that the measure was technically unconstitutional at the time of passage, since it contravened Const 1963, art 7, § 7, and the Michigan Supreme Court had not yet held said constitutional provision violative of the United States Constitution.
The important fact from these initial deliberations is that at no time before House passage of the County Apportionment Act on March 15, 1966, did that body consider or even contemplate the second' and third sentences of § 1 of said act. Section 1 of the House bill then contained one sentence which was essentially the same as the first sentence of the present § 1, and gave apportionment power exclusively to the county Apportionment Commissions with no thought of, nor provision for, a 30-day self-apportionment option in favor of the county Boards of Supervisors.
On March 16, 1966, the House version of the bill was transmitted to the Senate and referred to the Senate Committee on Municipalities. On April 7, 1966, the Senate committee reported the bill out with amendments, and recommended passage. It is significant that there was no mention at this time of adding sentences 2 and 3, containing the 30-day option, to § 1 of that bill.
Thereafter, Senator Schweigert on April 12, 1966, introduced an extremely important substitute apportionment bill. Sections 1 and 4 of this bill are espicially relevant to the instant case and read as follows:
“Sec. 1. Within 60 days after the effective date of this act and in subsequent years within 60 days after the publication of the latest United States official decennial census figures, each county board of supervisors shall apportion themselves according to the provisions of this act.
“Sec. 4. Upon failure of a county board of supervisors to apportion themselves within the time limits and conditions imposed by this act, there shall be created a county apportionment commission.” Senate Journal 1966, pp 850, 852.
The Schweigert bill thus contained the first suggestion offered in either the House or the Senate that county Boards of Supervisors should self-apportion, with county Apportionment Commissions being formed only if county boards failed to apportion themselves. Furthermore, the Schweigert bill was admirably clear in expressing its intent that county boards would have exclusive self-apportionment power after every United States official census publication.
On April 13,1966, sentences 2 and 3 of the present § 1 made their first appearance as amendments added to the single sentence comprising § 1 of the House bill. On April 14, Senator Schweigert offered his substitute bill, but it failed. The Senate then passed its version of the House bill, including the addition of sentences 2 and 3 to § 1 of said bill.
The first House-Senate Conference Committee report recommended eliminating the 30-day option language from the Senate version of the bill. This report was approved by the House, but was rejected by the Senate. A second conference report modified the 30-day option language to apply only to counties under 75,000 population, and this report was adopted by both houses.
2. Intent As Manifested In The Language And Structure of the Statute Itself
While legislative proceedings are helpful in determining intent relative to ambiguous statutes, insight into legislative intent can also often be ob tained by an analysis of statutory language in the context of the entire act and its amendments. People v Babcock, 343 Mich 671 (1955); Lee v Employment Security Commission, 346 Mich 171 (1956). An analysis of § 1 of the County Apportionment Act discloses the following facts:
a) The first sentence of the original § 1 stated:
“On or before May 15,1967, and in subsequent years within 60 days after the publication of the latest ¡United States official decennial census figures, the county apportionment commission in each county of this state shall apportion the county * * * .”
This language explicitly provided a continuing mechanism by which county Apportionment Commissions would function after each decennial census. It is significant that the Legislature did not insert similar language in sentence 2 of § 1. Failure to do so suggests that the Legislature did not intend the county Boards of Supervisors to have a decenniallyrecurring option of self-apportionment.
b) The second sentence of original §1 stated:
“In counties under 75,000, upon the effective date of this act, the boards of supervisors of such counties shall have not to exceed 30 days in which to apportion their county into supervisor districts * * * .” (Emphasis added.)
The question immediately presented is whether the phrase “upon the effective date of this act” modifies “in counties under 75,000” or instead modifies “the boards of supervisors of such counties”. The Attorney General’s letter-opinion necessarily implies that the phrase in question modifies “in counties under 75,000”. There are, however, several valid arguments against such a construction:
(1) Said construction would require a determination that the comma between the words “75,000” and “upon” was inadvertently placed there. If the disputed phrase had been intended to modify and destine the time for determining whether a county had under 75,000 inhabitants, grammatical precision would dictate omission of this separating comma. The language should then have read:
“In counties under 75,000 upon the effective date of this act * * * .”
Since punctuation is an important factor in determining intent and the rules of grammar are presumed to have been known to the Legislature, inclusion of the separating comma suggests that the disputed phrase was not intended to modify the first clause of sentence 2.
(2) Consideration of the first and second sentences of § 1 in pari materia shows that the second phrase in sentence 1 modifies the subsequent clause “the county apportionment commission in each county of this state”. Since sentences 1 and 2 appear parallel in construction, logic would suggest that the disputed second phrase of sentence 2 also modifies the subsequent clause “the boards of supervisors of such counties” and not the preceding phrase “in counties under 75,000”.
(3) Interpretation of the disputed second phrase of sentence 2 as modifying “in counties under 75,-000” would mean that all counties having populations under 75,000 as determined by the 1960 census would perpetually have to allow their county Boards of Commissioners first option to apportion, at least upon the meaning accorded the phrase in the Attor ney General’s letter-opinion. This would remain true even if a county tripled its population from one census period to the next. Such a result appears contrary to the entire tenor of the act.
(4) A reading of the entire County Apportionment Act shows that there is no further reference to county Boards of Commissioners as apportioning entities subsequent to the § 1 reference. If the Legislature had intended a perpetual sharing of apportioning power between Apportionment Commissions and county Boards of Commissioners, reference to both bodies would have been made in subsequent sections relating to apportionment procedures. Instead, these sections refer only to the county Apportionment Commission as the apportioning authority. This suggests that the Legislature intended the county Apportionment Commission to have sole apportioning power after the 1970 census.
(5) In determining the time at which the 30-day option for self-apportionment begins to run, the only logical conclusion is that the phrase “not to exceed 30 days” in sentence 2 of § 1 refers to, and is triggered by, the phrase “upon the effective date of this act”, which appears earlier in the same sentence. This interpretation is supported by the so-called “doctrine of the last antecedent”, which provides that qualifying words and phrases refer solely to the last antecedent where no contrary intention appears.
The Attorney General’s letter-opinion, however, requires a determination that the phrase “not to exceed 30 days” in sentence 2 relates back to the first part of sentence 1, “within 60 days after the publi cation of the latest United States official decennial census figures.” Such an interpretation violates the foregoing rule of statutory construction.
The Attorney General’s belief that county Boards of Commissioners enjoy a continuing 30-day option to self-apportion is founded upon the premise that although the Legislature has twice amended § 1, sentences 2 and 3 thereof have remained intact, thus allegedly manifesting legislative intent that the 30-day option continue in effect. Although this premise may be entitled to some weight as a rule of statutory construction, it would he much more compelling if the Legislature had retained the disputed language subsequent to a judicial interpretation thereof. Van Antwerp v State, 334 Mich 593 (1952). Here, however, there was no construction of the statutory language prior to legislative amendment.
It should be noted that the first phrase of the original § 1, “on or before May 15, 1967”, was left intact after § 1 was first amended by 1968 PA 153 (effective June 13,1968). One might argue that the survival of that language indicated legislative imputation of some continuing effect thereto. Such an argument would clearly be absurd, since it is obvious that the words, “on or before May 15, 1967”, were obsolete at the time of first amendment. This language was undoubtedly retained inadvertently, and was in fact deleted during the second amending process in 1969. Sentences 2 and 3 of § 1 may similarly be considered obsolete and have escaped deletion only by virtue of legislative inadvertence, just as did the first few words of sentence 1. As stated in 82 CJS, Statutes, § 343, pp 687-688:
“While, as a general rule, every word in a statute is to be given force and effect, * * * unnecessary words or clauses, words inadvertently or mistakenly used, words to which no meaning at all can be attached or words having no meaning in harmony with the legislative intent as collected from the entire act will be treated as surplusage, and will be wholly disregarded in the construction of the act in order to effectuate the legislative intent.”
Some general principles of statutory interpretation, however, are relevant to the present problem. First, the ultimate legislative intent which must be determined in interpreting an ambiguous statute is that intent existing at the time the act was passed, not the intent expressed by subsequent amendment. Iron Street Corp. v Unemployment Compensation Commission, 305 Mich 643 (1943); Detroit Edison Co v Department of Revenue, 320 Mich 506 (1948). Secondly, “ordinarily, subsequent acts of the Legislature cast no light on the intent of the Legislature which originally enacted a statute”. Koppers Coal Co v Alderson 125 W Va 747, 752; 26 SE 2d 226, 229 (1943). Finally, “parts of an amended statute not affected by the amendment will be given the same construction that they received before the amendment”. Brailsford v Blue, 57 Cal 2d 335, 339; 19 Cal Rptr 485, 487; 369 P2d 13, 15 (1962). Measured against these rules, the subsequent amendments to § 1, in and of themselves, are not determinative of the question we must resolve.
The apportionment act established a sophisticated, progressive, comprehensive mechanism designed to eliminate the archaic apportioning procedures then extant. Given the traditional inability of existing political bodies to apportion themselves, it is not likely that the Legislature intended that this newly-developed apportionment mechanism should perpetually be inapplicable to 65 of Michigan’s 83 counties. That, however, would be precisely the effect obtained if the 30-day option language in § 1 is interpreted according to the Attorney General’s letter-opinion. The county apportionment Commissions could then function in 65 counties only upon failure of the county boards to apportion themselves within the allotted option time.
Senator Schweigert’s substitute bill offered tbe Legislature a clear opportunity to create a mechanism whereby county Boards of Commissioners would have a perpetual option to apportion themselves. This bill, however, was rejected by the Legislature. Nevertheless, the Attorney General’s letter-opinion would interpret § 1 as providing a perpetual, exclusive 30-day self-apportionment option for 65 of Michigan’s 83 counties, and would thus closely approximate the mechanism suggested in Senator Schweigert’s bill, but rejected by the Legislature. It is most unlikely that the Legislature explicitly rejected the latter bill, only to adopt it implicitly by approving § 1 of the present act. Had the Legislature intended to achieve the Schweigert result, it would likely have adopted the Schweigert bill, or at least would have incorporated into present § 1 the explicit Schweigert language regarding perpetuity of the 30-day option.
We consequently hold that sentences 2 and 3 of § 1, added as the record demonstrates as a concession to small-county legislators, were intended to constitute a single exception to reapportionment by the county apportionment commission; they were not intended to provide the boards of county commissioners with a decennially-recurring option to self-apportion. The December 28, 1970, letter-opinion of the Attorney General is therefore overruled and the order of the Livingston County Circuit Court finding that the Livingston County Apportionment Commission has the exclusive right and responsibility to reapportion the board of county commissioners is affirmed. The Attorney General is directed to advise the Livingston County Apportionment Commission forthwith as to the date of official publication of the United States census so that it may measure the time provided for reapportioning the Livingston County Board of County Commissioners in accordance with the County Reapportionment Act.
No costs, a public question having* been involved.
MCLA 46.404(a); MSA 5.359(4) (a).
The apportionment commission in each county consists of the county clerk, county treasurer, prosecuting attorney, and county chairmen of the two political parties receiving the greatest number of votes east in the most recent secretary of state election. MCLA 46.403; MSA 5.359(3).
Section 46.404(a) provides that all districts shall be “as nearly of equal population as is practicable”.
Avery v Midland County, 390 US 474; 88 S Ct 1114; 29 L Ed 2d 45 (1968), being the most germane to the county apportionment statute.
The act was effective March 10, 1967, and the 1968 amendment thereof, on June 13, 1968.
In the time intervening between the original act and the first amendment thereto, the Michigan Supreme Court ruled the act unconstitutional and then reversed its decision in view of the decision of the United States Supreme Court in Avery v Midland County, supra. Advisory Opinion re Constitutionality of PA 1966, No 861, 379 Mich 55 (1967) and 380 Mich 736 (1968).
McCann v Terhune, 12 Mich App 364 (1968); City of Lansing v Lansing Twp, 356 Mich 641 (1959).
House Journal 1966, pp 387-391.
Ibid, pp 446-447, 689-694, 702.
Ibid, p 752.
Senate Journal 1966, P 502.
Ibid, p 802.
Ibid, pp 849-855.
Ibid, pp 876-877. Sentences 2 and 3 as introduced would have exempted counties under 370,000 in population in 1960 leaving only the Genesee, Macomb, Oakland, and Wayne boards of county commissioners to be apportioned by the county apportionment committee.
Ibid, pp 900-906.
Ibid, p 907.
Ibid, pp 1376-1378.
Souse Journal 1966, pp 2498-2501.
Senate Journal 1966, p 1402.
Census figures for 1960 indicate that 65 of Michigan’s 83 counties have populations under 75,000.
Souse Journal 1966, pp 2998-3000; Senate Journal, 1966, p 1991.
Language in the present aet is identical, except that “commissioner(s)” has been substituted for “supervisor(s).”
Kales V City of Oak Park, 315 Mich 266 (1946).
United States v Goldenberg, 168 US 95, 18 S Ct 3: 42 L Ed 394 (1897).
2 Sutherland, Statutory Construction, 3d ed, § 4921, pp 448-
This Court did on October 23, 1968, invalidate an apportionment plan adopted by the Allegan County Board of Supervisors, and in establishing guidelines for future apportionment procedures within Allegan County (a county of less than 75,000 population), we stated:
“Our finding that Plan A is invalid requires that the Allegan County Board of Supervisors be reapportioned by the county apportionment commission in accordance with the mandatory guidelines specified in PA 1966, No 261, § 4.
“In the event the official published figures of the 1970 United States official census are not available in time for the county apportionment commission to formulate and adopt an apportionment plan for the 1970 primary election, that election and the 1970 general elections may be held under Plan A * * * . ” [Emphasis added.] In re Apportionment of Allegan County Board, of Super-13 Mich 697
In an unpublished order regarding the apportionment of the Cass County Board of Commissioners, the Court ordered the county apportionment commission “to apportion Cass County immediately upon the publication of • the 1970 U.S. Official Decennial Census”. Neither case is particularly helpful to our decision herein, since the question of who would do the work of reapportionment was never raised in those cases; this Court merely assumed that the board of county commissioners was only accorded the single opportunity to reapportion and that thereafter the responsibility would fall to the county apportionment commission.
In accordance with these two decisions, the Attorney General advised both Allegan and Cass counties that they would be required to apportion in accordance with the directions of this Court rather than his opinion of December 28, 1970. Overlooked by the Attorney General was Barry County, also under 75,000 in 1960, which this Court also presumed would be reapportioned after the 1970 census by the county apportionment commission:
“If we reviewed the three plans before us and determined that none of them was constitutional, the apportionment commission of Barry County would be required to draft a new plan on the basis of the 1960 census figures. Within a few months, the section of the statute above cited requires that the commission do this very act with the 1970 census figures.” O’Connor v Eckardt, 23 Mich App 150, 154-155 (1970).
In making its ruling herein, the Livingston County Circuit Court properly relied on this dictum to find the county apportionment commission to be the body vested with the responsibility of reapportioning the board of county commissioners.
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Sawyer, J.
Plaintiff appeals from an order of the circuit court affirming a declaratory ruling of the Commissioner of Insurance. The commissioner ruled that the proposed plan submitted by plaintiff to purchase and operate an insurance agency would violate the Insurance Code and result in revocation of the agency’s license. We reverse.
Ludington Savings Bank (lsb) is a federally chartered savings and loan institution located in Ludington. It desires to purchase an existing insurance agency in Ludington through a wholly owned subsidiary, plaintiff Ludington Service Corporation. Plaintiff sought this declaratory ruling from the commissioner to determine if the commissioner would oppose the acquisition and operation of the agency by plaintiff in accordance with plaintiff’s proposed business plan. The commissioner found that if plaintiff operated the agency in accordance with the plan, it would violate a number of sections of the Insurance Code. Presumably, in such a case, the commissioner would revoke the agency’s license or impose such other sanctions as the code might allow.
We turn first to plaintiff’s argument that the commissioner has erroneously interpreted the Insurance Code. We agree. In the declaratory ruling, the commissioner stated that plaintiff’s proposed business plan violated §§ 1207(3), 1207(5), 1242(3), and 2077(2) of the Insurance Code, being MCL 500.1207(3); MSA 24.11207(3), MCL 500.1207(5); MSA 24.11207(5), MCL 500.1242(3); MSA 24.11242(3), and MCL 500.2077(2); MSA 24.12077(2), respectively. We are not persuaded that plaintiff would necessarily violate the code if the agency is operated according to the business plan.
Turning first to § 1207(3), that section provides as follows:
Except as provided in section 1212 and subsection (4), an agent shall not reward or remunerate any person for procuring or inducing business in this state, furnishing leads or prospects, or acting in any other manner as an agent.
The commissioner found, in essence, that this section of the Insurance Code would be violated if lsb were to promote business for the agency, because any profits of the agency would be distributed to lsb as owner.
Although the commissioner’s position is supported by this Court’s decision in THM, Ltd v Comm’r of Ins, 176 Mich App 772; 440 NW2d 85 (1989), we believe that case was not correctly decided. Section 1207(3) prohibits the payment of a reward or remuneration by an agent to another person for procuring business, furnishing leads, and so forth. We do not read § 1207(3) as prohibiting the payment of profits or dividends to a hold ing company if the holding company also engages in the general business promotion of its subsidiary. Rather, § 1207(3) prohibits the payment of a referral fee, i.e., a quid pro quo payment to an individual for the referral of a client.
This issue was discussed in Lawyers Title Ins Corp v Chicago Title Ins Co, 161 Mich App 183; 409 NW2d 774 (1987), which was relied upon by the THM Court. In Lawyers Title, the plaintiff was a title insurance company that sold insurance through exclusive arrangements with agencies that were owned by real estate brokers. The brokers would refer all of their real estate customers to the broker-owned agencies to procure title insurance from the plaintiff. This Court affirmed the commissioner’s finding of a violation of § 1207(3) based upon the referral of business and payment of dividends to the broker-owners of the title companies. It is important, however, to look closely at the basis for this Court’s decision.
First, this Court specifically noted that the stock in the agencies "was originally distributed to reflect the amount of business each broker would refer.” Lawyers Title, supra at 193. The Court also rejected the argument that the commissioner’s position would prohibit "all closely held title corporations whose shareholders would naturally refer their associates to their corporation and, in turn, receive dividends.” Id. The Court also considered the argument that § 1207(3) prohibits only the payment of referral fees, holding as follows:
The other respondents also claim that § 1207(3) was only intended to apply to monetary rewards for referrals to persons who are not licensed insurance agents and not to forbid distribution of bona fide corporate dividends. Respondents fail to point out that the corporate dividends which they characterize as bona fide were also found by the com missioner to be a reward or remuneration for their shareholder-brokers to procure business. We further agree with the commissioner that the fact that the brokers might not receive dividends in direct proportion to their referrals is irrelevant under § 1207(3). The important facts are that the brokers were receiving dividends from respondents for procuring title insurance business and that they were receiving these dividends for the amount of title insurance business they were expected to refer. [Lawyer’s Title, supra at 193-194; emphasis added.]
Thus, in Lawyers Title, the basis for finding a violation of § 1207(3) was not just the fact that shareholders sent business to the agency and received dividends. Rather, the structure of the ownership of the agencies and the payment of dividends were designed to recompense the shareholder-brokers in proportion to the amount of business to be referred by those shareholder-brokers. There is no indication in the case at bar that the dividends to be paid to lsb will be dependent upon, and proportionate to, the amount of business referred to the agency by lsb.
The statute does not permit an agent to "reward” or "remunerate” another person. The Random House College Dictionary (rev ed), defines "reward” as follows:
1. something given or received in return for service, merit, etc. ... 3. to recompense or requite (a person or animal) for service, merit, achievement, etc. 4. to make return for or requite (service, merit, etc.); recompense.
Similarly, "remunerate” is defined as:
1. to pay, recompense, or reward. 2. to yield a recompense for.
Where a term is not defined by the statute, it is appropriate to look to the dictionary definition of the word. United Southern Assurance Co v Aetna Life & Casualty Ins Co, 189 Mich App 485, 489; 474 NW2d 131 (1991). The terms "reward” and "remunerate” encompass the payment of money to compensate for a service rendered, not the payment of profits to an owner of a company as a return on investment. Thus, § 1207(3) prohibits the payment of referral fees and does not apply to prohibit a holding company from promoting a subsidiary insurance agency’s business.
In sum, § 1207(3) is not violated where an agency pays a dividend to a shareholder based upon the profits earned by the agency and the shareholder engages in promotion of the insurance agency. Eather, a violation would occur only if the shareholder is specifically remunerated for business provided by the shareholder to the agency without regard to the general profitability of the agency, or if the ownership of the agency and profit distribution are structured in such a manner as to make a profit distribution directly dependent on the referral of business by the shareholder to the agency.
Next, the commissioner opined that operating the agency according to lsb’s business plan would violate § 1207(5), which provides as follows:
A person may not sell or attempt to sell insurance by means of intimidation or threats, whether express or implied. Except as provided in section 2077(4) a person may not induce the purchase of insurance through a particular agent or from a particular insurer by means of a promise to sell goods, to lend money, to provide services, or by a threat to refuse to sell goods, to refuse to lend money, or to refuse to provide services.
The commissioner also determined that there would probably be a violation of § 1242(3), which provides as follow:
After notice and opportunity for a hearing, the commissioner may refuse to grant or renew a license to act as an agent, solicitor, adjuster or insurance counselor if he determines by a preponderance of the evidence, that it is probable that the business or primary occupation of the applicant will give rise to coercion, indirect rebating of commissions or other practices in the sale of insurance which are prohibited by law.
The "Disclosure” section of the business plan specifically provides for informing customers that purchasing insurance through the agency will not affect the decision to grant credit either favorably or unfavorably. Despite these provisions of the business plan, the commissioner nevertheless determined that a violation of §§ 1207(5) and 1242(3) would likely occur:
7. According to the Plan, lsb will make informational mailings to its borrowers and the general public with respect to the availability of insurance services from the Agency and with respect to the affiliation between lsb and the Agency. These mailings will promote a perception among borrowers that loans from lsb are tied to insurance sales. If the mailings are done with frequency to lsb customers, some customers will receive promotional literature at the same time they are making applications for new loans._
8. Under this arrangement, it is probable that the sale of insurance by the Agency, as promoted by lsb, will give rise to coercion and be in violation of Section 1242(3) and give rise to implied threats to refuse to lend money in violation of Section 1207(5).
Again, we see no probable violation of these sections of the Insurance Code. Considering first § 1207(5), that section prohibits the use of threats or intimidation to sell insurance. However, nothing in the business plan calls for lsb or the agency to employ threats or intimidation to sell insurance. Rather, the commissioner’s concerns seem focused on the prospect that bank customers will feel intimidated or think that it is necessary or helpful to obtaining credit from the bank to purchase insurance through the agency. At most, this means that some customers might infer a threat from being informed of the connection between lsb and the agency.
It is conceivable, of course, that some bank customers might believe it necessary or helpful to purchase insurance through the agency and that the failure to do so might result in lsb refusing to extend credit despite lsb’s representations to the contrary. We do not believe, however, that § 1207(5) focuses on the subjective beliefs, reasonable or unreasonable, of the customer. Rather, it focuses on the conduct of the insurance salesman. It prohibits a person endeavoring to sell insurance or to induce the sale of insurance through a particular agent from using intimidation, threats, or certain promises. These are all affirmative acts. Thus, in determining whether a violation of § 1207(5) exists, the conduct at issue must be viewed from the perspective of the insurance agent, rather than the customer, to determine whether the agent intimidated, threatened, or made improper promises. Thus, the issue here is not whether a bank customer might feel it helpful to purchase insurance through lsb’s agency, but whether lsb is encouraging that belief by telling its customers, either expressly or by implication, that it is necessary to purchase insurance through the agency in order to get favorable treatment by the bank.
As stated above, nothing in the business plan indicates that lsb intends to do this. The commissioner erred in determining that merely informing customers of the connection between lsb and the agency is an intimidating or threatening tactic. Rather, the manner in which lsb informs its customer (i.e., what statements are made), as well as what other conduct lsb engages in to promote its insurance agency, may be reviewed by the commissioner. If any such conduct is shown to employ intimidation, threats, or promises, the commissioner may address the violation accordingly. However, the commissioner should not presume lsb guilty until proven innocent.
As for the related concerns with respect to § 1242(3), which permits the commissioner to refuse to grant or renew a license if a preponderance of the evidence establishes "that it is probable that the business or primary occupation of the applicant will give rise to coercion,” the analysis is essentially the same as that for § 1207(5). Nothing in the business plan indicates an intent by lsb to engage in coercive tactics. Moreover, the argument that it is inherently coercive to allow a bank to own an insurance agency must fail in light of the commissioner’s own admission that banks have, in fact, been allowed to own insurance agencies. The commissioner’s admission of this fact means that the issue must be examined case by case; nothing in this case indicates the existence, or intended use, of coercion. Of course, the activities of lsb and its agency will be subject to the continuing scrutiny of the commissioner and, if the facts support it, the commissioner could at some future time refuse to renew the agency’s license under § 1242(3).
The final section of the Insurance Code the commissioner determined would be violated by lsb’s business plan is § 2077(2), which prohibits the disclosure of certain real estate mortgage information to insurance agents. Section 2077(2) provides as follows:
If an instrument requires that a purchaser, mortgagor or borrower furnish insurance of any kind on real property being conveyed or which is collateral security to a loan, the vendor, mortgagee or lender shall refrain from using or disclosing any such information to his own advantage or to the detriment of the purchaser, mortgagor, borrower, insurance company or agency complying with such requirement.
The business plan contains no provisions stating that lsb will make use of such information. In fact, it contains provisions that explicitly preclude the use or disclosure of such information. The commissioner, however, takes the position that any general mailings by lsb to all of its customers would nevertheless violate § 2077(2) because some customers will be mortgage customers who are required to have insurance. We disagree.
First, there is the question of exactly what information a lender is precluded from disclosing under § 2077(2). The statute itself refers to instruments that require the borrower to furnish insurance on real property pledged as collateral for a loan and prohibits the lender from "using or disclosing any such information” to his advantage or to the detriment of the purchaser, borrower, mortgagor, insurance company, or agency complying with "such requirement.” Thus, by its terms, the only "information” mentioned in the statute is the information that the borrower is required to furnish insurance. That is, a lender is only precluded under the statute from disclosing the existence of a mandatory insurance requirement.
Of course, as pointed out by the Michigan Bankers Association in its amicus brief and not disputed by the commissioner, every mortgage requires the borrower to insure the property and, thus, insurance agents can, and do, solicit homeowners for their business. Further, as pointed out in Michigan Bankers’ amicus brief, mortgages are public records and, therefore, any insurance agent can determine who is a mortgagor and what is the anniversary date of the mortgage (the most likely time for the expiration of the existing insurance policy).
Thus, the disclosure of the existence of the insurance clause in an existing mortgage would not seem to be a basis for finding a violation of the statute because this information is in the public domain anyway. One cannot take an unfair advantage from information known to the public. However, what is not public information is the applica tion for a mortgage and the fact that the applicant will have to procure insurance to obtain the mortgage. Thus, lsb could be in a position to improperly exploit this information to solicit business on behalf of the agency from mortgage applicants whose status is not yet in the public records.
The business plan indicates that lsb will not make use of this information to solicit insurance business. However, from the commissioner’s viewpoint, a violation of § 2077(2) would still be caused by general mailings to lsb’s customers because it is likely that some of those customers would be in the process of obtaining a mortgage from lsb when they received an insurance solicitation. However, § 2077(2) prohibits only the use of the information of the insurance requirement. By mailing to general customers, rather than to mortgage applicants, the information is not, in fact, being used.
For the above reasons, we conclude that the commissioner erred in determining that the business plan would violate the Insurance Code. In light of our conclusion above, we need not address plaintiiFs remaining challenges, which were based upon constitutional and federal preemption theories, to the commissioner’s ruling.
Reversed. Plaintiff may tax costs.
Specifically, the commissioner’s findings of fact and conclusions of law include the following:
3. According to the Plan, lsb will make informational mailings and disseminate information to its customers and the general public with respect to the availability of insurance services from the Agency. If the Agency is profitable, those profits will inure directly or indirectly to the benefit of lsb through the payment of dividends by the Agency.
4. This arrangement will violate Section 1207(3) because, by dividend payments, it will reward lsb for inducing or procuring business and providing leads or prospects.
The business plan provides as follows:
The Savings Bank will disclose to customers in writing that purchase of insurance from the Service Corporation Agency:
1. is optional, and customers are free to obtain insurance from other sources.
2. will not favor or disfavor any past, present, or future application for credit in any way whatsoever.
The commissioner determined that lsb’s business plan would violate these provisions for the following reasons:
5. According to the Plan, lsb will make informational mailings to persons who secure mortgages from lsb. Lsb will obtain the names and addresses of these persons through the mortgage process. The Agency will sell insurance that is required in connection with the mortgages. The informational mailings will promote the sale of this required insurance by the Agency. If the Agency is profitable, those profits will inure, directly or indirectly, to the benefit of lsb.
6. This arrangement will violate Section 2077(2) since, with respect to required insurance on real property which is collateral security to a loan, lsb will use information, including names and addresses, to its own advantage.
A potential violation of §2077(2) does exist if lsb places on its mailing list an individual who applies for a mortgage and who has no prior relationship with lsb and, thus, would receive the mailing only because of his mortgage application. It is not clear to us that this would be a violation because it would still be part of a general mailing. However, even if it is, compliance with the. statute could be easily obtained by lsb merely by refraining from adding to the mailing list until after the mortgage closes those mortgage applicants who are not already on the list.
We reject plaintiiFs argument that the commissioner erred in applying the decision in THM without first promulgating a rule. There is no requirement that an agency promulgate a rule before following a court decision. | [
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T. J. Lesinski, J.
Plaintiff appeals as of right a Wayne Circuit Court order granting summary disposition in favor of defendants Hinton, McDonald, and Morgan pursuant to its finding that plaintiff had failed to establish a factual issue regarding gross negligence on the part of those defendants, emergency telephone operators for the defendant City of Detroit. See MCR 2.116(C)(10). We affirm.
Plaintiff alleged that ten calls were made to the City of Detroit’s 911 number between 8:43 p.m. and 10:22 p.m. on July 16, 1986, seeking assistance for decedent. Ems technicians arrived at decedent’s residence at 10:29 p.m. to find that decedent had no vital signs. Decedent was pronounced dead at 11:05 p.m. at Oakwood Hospital in Dearborn, Michigan. Plaintiff asserts that defendants’ failure to respond quickly to the emergency constituted negligence, gross negligence, and wanton or wilful conduct, conduct for which governmental immunity is not available. See MCL 691.1407(2)(c); MSA 3.996(107)(2)(c).
In support of their motion for summary disposition, defendants offered the daily log of calls received by the 911 operators. The log indicates that someone called the 911 number on behalf of decedent three times on the night of July 16, 1986, specifically at 10:13 p.m., 10:20 p.m., and 10:22 p.m. The log is devoid of any entry preceding the one listed at 10:13 p.m. The record also contains evidence that ems technicians received the call from a 911 operator at 10:16 p.m. and arrived at decedent’s residence by 10:29 p.m. The motion was supported by an affidavit of defense counsel that stated that the affidavit was based on personal knowledge, and that the affiant knew the contents of the motion and that they were true except with regard to those matters therein stated to be upon information and belief, which she believed to be true.
In defense of her position, plaintiff merely reiterated the allegations contained in the complaint, namely, that a total of ten calls were made to the 911 operators on the night in question. No challenge using documentary evidence, affidavits, or depositions was filed in support of plaintiff’s opposition to the facts asserted by the defendants in the motion for summary disposition or the documents attached thereto.
A motion for summary disposition brought under MCR 2.116(0(10) tests whether there is factual support for a claim. Once the moving party has supported its position with documentary evidence, the party opposing the motion has the burden of showing that a genuine issue of disputed fact exists. Pantely v Garris, Garris & Garris, PC, 180 Mich App 768, 773; 447 NW2d 864 (1989). The nonmovant may not rest upon mere allegations in the pleadings but must, by the use of documentary evidence, set forth specific facts showing that there is a genuine issue for trial. MCR 2.116(G)(4); McCart v J Walter Thompson USA, Inc, 437 Mich 109, 114-115; 469 NW2d 284 (1991). All inferences are to be drawn in favor of the nonmovant. Dagen v Hastings Mutual Ins Co, 166 Mich App 225, 229; 420 NW2d 111 (1987). Before judgment may be granted, the court must be satisfied that it is impossible for the claim asserted to be supported by the evidence at trial. Peterfish v Frantz, 168 Mich App 43, 48-49; 424 NW2d 25 (1988).
Applying the facts of this case to the law, we conclude that the trial court properly ruled that plaintiff failed to raise a genuine issue of material fact regarding whether the defendants were guilty of gross negligence. Consequently, the trial court properly granted defendants’ motion for summary disposition upon finding that the case failed to come within any exception to governmental immunity.
Affirmed.
Jansen, J., concurred. | [
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T. J. Lesinski, J.
The Wayne County Prosecutor appeals as of right from an order of the Detroit Recorder’s Court granting defendant’s motion to quash the information charging him with murder and possession of a firearm during the commission of a felony. On June 13, 1990, defendant shot and killed the decedent after the decedent had attempted to break into his home and had broken into his neighbor’s garage. Defendant fired a shot at the decedent as he attempted to leave the scene with.a lawn mower. Defendant was bound over by the district court on charges of murder in the second degree, MCL 750.317; MSA 28.549, and felony-firearm, MCL 750.227b; MSA 28.424(2). Defendant subsequently brought a motion to quash the information, which was granted by the lower court on January 11, 1991. The prosecution appealed the lower court ruling. We reverse.
Defendant is a homeowner residing in the City of Detroit. Early in the morning of June 13, 1990, defendant was awakened by the sound of a kick at his side door. Defendant got out of bed, retrieved a .38 caliber pistol from his basement, and looked out the window. He saw the decedent walking down his driveway and away from his side door. The decedent then walked across defendant’s yard to the yard of defendant’s neighbor. The decedent jumped over the gate in the neighbor’s fence and kicked in her garage door. The decedent then went inside, came out, and threw something over the gate. Defendant opened his door, fired one shot, then closed the door. Defendant, upon learning that his wife had notified the police, got ready for work and left. On his way to work, he disposed of the handle grips and the cylinder of his gun.
After returning home and learning that the police had not come seeking him, defendant went to the police department, where he gave a voluntary statement regarding the events that occurred on the morning of June 13, 1990. He was subsequently arrested. At the preliminary examination, both parties stipulated the identity of the decedent and that he died of a gunshot wound to the head.
On the basis of the evidence adduced at the preliminary examination, defendant was bound over for trial on charges of second-degree murder and felony-firearm. Consequently, defendant brought in the Detroit Recorder’s Court a motion to quash the information.
The parties stipulated the supplementation of the record by admitting the report of an evidence technician, which verified that the neighbor’s garage had been broken into, that the decedent was in the process of pushing away a lawn mower when he was shot, and that the decedent’s body was found 100 to 150 feet from the spot from which defendant had fired. The prosecutor, in response to the motion, did not contest that the decedent was a fleeing felon at the time he was shot. Rather, the prosecutor argued that the question of the necessity of the shooting was one of fact that should have been left for the jury to decide. The Recorder’s Court judge rejected the prosecutor’s arguments and entered orders granting defendant’s motion and dismissing the charges.
The general standard utilized by this Court in situations where a trial court quashes an information is to determine whether the district court abused its discretion in binding over the defendant. People v Talley, 410 Mich 378, 385-386; 301 NW2d 809 (1981); People v Sherman, 188 Mich App 91, 93; 469 NW2d 19 (1991). Where there is no abuse of discretion by the district court, a trial court’s decision to quash the information should be reversed. Id.
In this case, the Recorder’s Court, under the mistaken belief that the facts and circumstances in this case unquestionably justified defendant’s use of deadly force, concluded that the district court had abused its discretion. The prosecutor argued below and on appeal that the use of deadly force by a private person to apprehend a fleeing felon must be reasonable under the circumstances, which is a factual question that should be left to a jury.
MCL 764.16; MSA 28.875 provides, among other things, that private persons may make an arrest for felonies committed in their presence. However, the statute fails to address the issue whether a private person may use deadly force. We therefore turn to the common law.
The common law recognizes two categories of justifiable deadly force used by a private person: where the person making the arrest is met with force from the person being arrested and where force is necessary to prevent the flight of a suspected felon. People v Whitty, 96 Mich App 403, 411; 292 NW2d 214 (1980). Because the facts here do not indicate that defendant perceived any threat of force by the decedent, resolution of this case hinges upon the latter category. According to this Court, the use of deadly force to prevent the escape of a fleeing felon is justifiable where the following three circumstances are present: (1) the evidence must show that a felony actually occurred, (2) the fleeing suspect against whom force was used must be the person who committed the felony, and (3) the use of deadly force must have been "necessary” to ensure the apprehension of the felon. Whitty, supra, pp 411, 413.
Recently, the Michigan Supreme Court addressed the issue of the use of deadly force in situations involving a fleeing felon. In People v Couch, 436 Mich 414, 421; 461 NW2d 683 (1990), the Court held that the common law regarding a private person’s use of deadly force to apprehend felons was adopted by the Legislature through its fifty-year acquiescence following the decision in People v Gonsler, 251 Mich 443; 232 NW 365 (1930). Moreover, the Supreme Court, responding to Tennessee v Garner, 471 US 1; 105 S Ct 1694; 85 L Ed 2d 1 (1985), ruled that private citizens, unlike peace officers acting under the color of state law, are not subject to the Fourth Amendment restraints that Garner imposed. Finally, the Court reversed the Court of Appeals ruling that would permit a private citizen to use deadly force only if he reasonably believed that the felon posed a threat of serious harm to himself or others.
At the hearing on defendant’s motion to quash the information, the prosecutor conceded that decedent was in the process of committing a felony when he was shot. Thus, the first two elements of the deadly force doctrine have been established in defendant’s favor. See Whitty, supra; Gonsler, supra. This leaves the more difficult question whether the shooting was "necessary,” the resolution of which will determine whether the district court or the trial court was correct in this matter.
We conclude that the issue of necessity is one of fact that should have been left for the jury to decide. In Alexander v Riccinto, 192 Mich App 65; 481 NW2d 6 (1991), this Court held that the determination of reasonableness and necessity was a question for the jury where the lower court had granted summary disposition in favor of an off- duty police officer who had shot a burglar hidden in the bushes outside his home. In reversing the lower court’s grant of summary disposition, this Court stated that "the determination of reasonable force hinges upon the facts of the particular case and was thus a question for the jury.” Id., p 69, citing People v Doss, 406 Mich 90; 276 NW2d 9 (1979), and 5 Am Jur 2d, Arrest, § 81, p 768. The Alexander case concerned a police officer who, although oif duty, was subject to the strictures of reasonableness developed pursuant to Fourth Amendment considerations surrounding searches and seizures. Because defendant in this case is a private citizen, Fourth Amendment constraints do not apply. See Couch, supra, pp 433-438 (separate opinion of Archer, J.). Thus, while we realize that Alexander is not on all fours with the case at bar, we, nonetheless, find support for the premise that the issue of necessity, if not reasonableness, is a question of fact for a jury to decide. See also People v McCord, 76 Mich 200, 206; 42 NW 1106 (1889) (brutal beating of a felon was not justified where he could have been arrested without injury to him or anyone else); People v Smith, 148 Mich App 16; 384 NW2d 68 (1985) (use of deadly force by a private citizen against a suspected felon was not justified where the citizen knew the residence of the suspected felon and police could have arrested the suspect there). We therefore conclude that the decision to bind over defendant for trial was a permissible exercise of the district court’s discretion, because the justification for defendant’s actions was a question of fact. See Talley, supra; Sherman, supra. Consequently, we reverse the Recorder’s Court’s decision to quash the information and dismiss the charges against defendant, and we reinstate the district court’s determination. See id.
Reversed. | [
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Per Curiam.
Defendant presents this appeal from a judgment, dated November 19, 1970, declaring a special assessment to improve and widen Masonic Avenue from Beaconsfield west to Kelly-Road to be unlawful.
By way of background, it should be noted that the City of Roseville, a growing community of more than 60,000 persons located in the southern part of Ma-comb County, entered into a contract in May of 1964 with the Roseland Shopping Center and Sears, Roebuck & Co., whereby the city agreed that Masonic Avenue from Beaconsfield west to Kelly Road would be repaved with 4 lanes of concrete pavement at its own expense. In accordance therewith, the defendant formed Special Assessment District Improvement No. PD 367 and levied an assessment of $12.37 per front foot against the property within the district.
The plaintiffs, incensed by this action, filed suit on August 7, 1969, for the purpose of having said assessments declared invalid and to enjoin the collection thereof. The main thrust of plaintiffs’ argument was that, while the widening of Masonic Avenue would be of benefit to the city as a whole, no special benefit accrued to them as abutting landowners, and, in fact, the increased traffic on Masonic Avenue was a detriment.
After a trial, lasting for three days, the learned acting circuit judge found in favor of the plaintiffs and granted the relief prayed for.
The leading cases on this subject are Fluckey v. City of Plymouth (1960), 358 Mich 447, and Brill v. City of Grand Rapids (1970), 383 Mich 216.
As pointed out by the trial court, the defendant no doubt was anxious to have this mall complex completed. The complex consists of a large Sears store, 55 other retailers, and 4,500 parking spaces, and was built upon land which previously had been occupied by a red barn and dairy farm. Masonic Avenue, which had been a two-lane black-top road, is not a busy commercial thoroughfare.
The court found “that the instant testimonial record mades a stronger case of strikingly like detriment than .was made either in Fluckey or Brill”. We agree.
The defendant attempted to show that the assessments were justified by virtue of an increase in value. The trial court ruled on this item in the following manner:
“Such increase of value can hardly be doubted. The conclusion however does not satisfy our inquiry. The real issue here is whether the pavement widening project stepped up the value of the plaintiffs’ home premises, or whether other factors did. If other factors caused the increase upon which the city depends, the questioned assessments receive no support on account of such expert testimony.
“As in Brill, the experts testifying for Roseville’s allegation of increased value have paid little or no attention to the impact of progressive inflation, a-factor the Supreme Court noted judicially as far back as 1957 when the disease of devalued money had moved only ‘from a crawl to a trot’. (Normand v Thomas Theatre Corp, 349 Mich 50, 61, 62 [1957].)
More important, no such witness has taken into consideration the rather obvious fact that it is the Mall and the business generated thereby, not the widened pavement, which with the course of inflation is the dominant cause of the testified dollar increase of nearby property values. As one of these witnesses conceded, the residential zoned premises on Masonic Avenue — in the vicinity of the Mall — are doubtless due for new zoning, since the already begun devotion of the nearby area to life in recently constructed apartment buildings foreshadows rezoning to allow more and more high level apartment construction and more commercial business around the Mall.”
We have reviewed the lengthy record and find no error.
Affirmed.
Costs to plaintiffs.
The trial court, by footnote, observed:
“If but a ‘trot’ in 1957, it surely is judicially noticeable that inflation’s acceleration has been ever greater since the Macomb Mall opened for business.” | [
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R. B. Burns, J.
Plaintiff, a minor, while employed hy defendant Serges, injured his hand cleaning a meat grinder owned by the defendants Vakula Brothers and leased to Serges. The meat grinder did not have a protective guard over its top; both Vakula Brothers and Serges agree that the absence of such a protective guard was readily apparent.
Plaintiff, via his next friend, brought suit against Vakula Brothers and Serges, but Serges’ subsequent motion for summary judgment was granted because of plaintiff’s successful application for workmen’s compensation benefits.
The Vakula Brothers filed a cross-claim against Serges alleging a right of indemnification against Serges based on implied contract or on the alternative theory that a “passive” tortfeasor may seek indemnity from an “active” tortfeasor. The Vakula Brothers appeal from the trial court’s decision granting Serges’ motion for summary judgment against the Vakula Brothers’ cross-claim.
The Vakula Brothers’ theories of indemnification are not applicable to the present case. An employer who has paid, or is paying; workmen’s compensation benefits to the plaintiff will not be liable for indemnification as a joint tortfeasor. Husted v Consumers Power Co, 376 Mich 41 (1965); Vannoy v City of Warren, 2 Mich App 78 (1965).
However, Vakula Brothers could have, if desired, included in the order of dismissal a declaration of no prejudice to their original right, if any, to recover against Henry Serges should they be compelled to satisfy — in whole or in part — any judgment or judgments these plaintiffs may recover in the cause now at issue. See Husted v Consumers Power Co, supra.
Affirmed. Costs to Serges.
All concurred.
The Workmen’s Compensation Act provides:
“Where the conditions of liability under this aet exist, the right to the recovery of compensation benefits as provided in this act shall be the exclusive remedy against the employer.” (Emphasis supplied.) MCLA 418.131; MSA 17.237(131).
Serges, plaintiff’s employer at the time of the accident, and his compensation carrier have paid and continue to pay double weekly payments to plaintiff’s guardian.
The motion was based on GCR 1963, 117.2(3), i.e., “that except as to the amount of damages there is no genuine issue as to any material fact, and the moving party is therefore entitled to judgment as a matter of law.” | [
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Per Curiam,
Following a bench trial, the defendant was convicted of conspiracy to violate the state liquor law, MCLA 436.50, 750.157a; MSA 18.1021, 28.354(1). On October 1, 1969, he was placed on probation for five years with the first six months to be served in the Detroit House of Correction. Due to the defendant’s medical condition, the sentence was deferred until further notice. He was ordered to pay court costs of $1,000 and to report every six months for a physicál.
On April 2,1971, Recorder’s Court Judge Thomas L. Poindexter signed an order presented by the Recorder’s Court Probation Department terminating the probation because the defendant no longer needed supervision.
On May 6,1971, the defendant was arrested under a Federal indictment charging him with violation of Federal laws as to gambling. The next day Judge Poindexter ordered the setting aside of his order of April 2, 1971, the reinstatement of probation, and a show cause hearing as to violation of the probation.
The hearing was held on June 29, 1971. At its conclusion the court stated that the defendant should appear in court the next morning to begin serving the six-month sentence which was a condition of the probation. The next day this Court granted the defendant’s emergency application for leave to appeal and ordered a stay of proceedings pending disposition of the appeal.
The only issue presented by the defendant is whether the trial court had the authority to set aside its previous suspension of probation order and to impose the terms of the probation including the six-month sentence.
The issue is controlled by People v Marks, 340 Mich 495 (1954), and MCLA 771.2; MSA 28.1132. The Supreme Court specifically held in the Marks case that the defendant’s rights were not impinged by an alteration in the probation order made within the statutory five-year period, even though the conditions of the original order had not been violated and its term had expired. They found the court’s authority in the aforecited statute which has not since been amended.
In the present case, the judge did not alter the terms of the probation order but merely reinstated them after the termination of the original probation . order, but within the five-year statutory period. On the authority of People v Marks, supra, and MCLA 771.2; MSA 28.1132, we find no error.
Affirmed. | [
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Memorandum: Opinion.
Defendant appeals his conviction of larceny in a building contrary to MCLA 750.360; MSA 28.592.
Defendant first contends that the trial court’s instructions as to the elements of the crime were in error. However, since no objection was registered against the instructions as given, we will not consider the question on appeal. GCR 1963, 516.2.
Defendant also contends that the prosecutor’s closing remarks were improper. Since the remarks were not objected to below, the issue is not properly preserved for appeal unless a showing of a miscarriage of justice can be made. People v Thomas Smith, 30 Mich App 34, 37 (1971). Our review of the record reveals that the remarks were neither improper nor prejudicial because they were related to the evidence at trial. See People v Humphreys, 24 Mich App 411, 414 (1970).
Affirmed. | [
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Memorandum Opinion.
Defendant pleaded guilty to the offense of attempted possession of narcotics. He was sentenced and appeals. A motion to affirm has been filed by the people.
Upon examination of the briefs and record, it is manifest that the questions sought to be reviewed are so unsubstantial as to need no argument or formal submission.
Motion to affirm granted. | [
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Connor, J.
Plaintiff appeals as of right from Ingham Circuit Court Judge Peter D. Houk’s order of April 23, 1990, granting summary disposition for defendants. Defendants have filed a cross appeal from that same order. We reverse the trial court’s decision and remand to the trial court for additional proceedings.
i
The facts in this matter are generally uncontested. This action was filed by plaintiff on October 23, 1983, to seek a refund of taxes paid in 1971, 1974, and 1975. Plaintiff filed amended returns for 1974 and 1975 on July 25, 1983. In addition, plaintiff amended its tax return for 1971 because the amendment for the 1974 return resulted in a net operating loss carry-back to the year 1971. The revenue commissioner denied the refund request on September 30, 1983, on the ground that the period of limitation had lapsed.
It was plaintiffs claim that the taxes it was required to pay in 1974 and 1975 were unconstitutional and it was entitled to refunds. Plaintiff relied upon the United States Supreme Court’s holding in Memphis Bank & Trust Co v Garner, 459 US 392; 103 S Ct 692; 74 L Ed 2d 562 (1983), declaring that state laws that include interest on federal obligations in the tax base for determining the income tax on financial institutions while at the same time excluding from taxation interest earned on state obligations violate the Supremacy Clause and federal law. Plaintiff did not pay its original taxes under protest and never raised the issue of unconstitutional taxation by defendants until after Memphis Bank was decided.
Well before the decision in Memphis Bank was released, the Michigan Legislature,. by 1975 PA 233, immediately effective August 27, 1975, repealed the sections of the Income Tax Act of 1967 that plaintiff contends were ruled unconstitutional by Memphis Bank. At the time plaintiffs tax returns were filed in 1974 and 1975, MCL 206.71; MSA 7.557(171) provided as follows:
(1) There is levied and imposed upon every financial institution a tax measured by 9.7% of taxable income as defined in section 34 subject to the applicable source and attribution rules contained in this act.
(2) The tax imposed on financial institutions is in lieu of all other state and local taxes, however measured, upon financial institutions, except taxes imposed upon real property, sales, use and similar excise taxes, examination and audit fees and those taxes levied under the provisions of Act No. 156 of the Public Acts of 1964, as amended, being sections 489.501 to 489.920 of the Compiled Laws of 1948.
(3) If the application of this tax to national banking associations is held to be invalid by final judicial action, then there shall be no tax levied or imposed by this section 71 on state banks, including industrial banks and trust companies.
The controversy in this case specifically pertains to the definition used for "taxable income” for financial institutions in MCL 206.34; MSA 7.557(134), also repealed by 1975 PA 233, and referred to in MCL 206.71; MSA 7.557(171). MCL 206.34; MSA 7.557(134) provided, in pertinent part, for the years at issue in this case:
(1) "Taxable income” in the case of a financial institution means federal taxable income subject to the following adjustments:
(a) Add gross interest income and dividends derived from obligations or securities of states other than Michigan, in the same amount which has been excluded from federal taxable income, less related expenses not deducted in computing federal taxable income because of section 265 of the internal revenue code.
In the trial court, the parties filed cross motions for summary disposition on multiple grounds, including that the period of limitation had expired, that subject-matter jurisdiction should be with the Tax Tribunal and the Court of Claims rather than the Ingham Circuit Court, and, finally, that the decision in Memphis Bank should be given prospective application only.
The trial court agreed with defendants that the decision in Memphis Bank should be applied prospectively only and held that plaintiff was not entitled to a refund at that late date.
n
The first issue raised by plaintiff on appeal is whether the trial court correctly determined that Memphis Bank should be applied prospectively only.
In Memphis Bank, the United States Supreme Court reviewed a Tennessee statute that imposed on banks doing business within Tennessee a tax based on net earnings and that defined net earnings to include income from obligations of the United States and its instrumentalities but excluded income earned on obligations of Tennessee and its political subdivisions. The Tennessee statute based the calculation on net earnings on the federal taxable income with specific adjustments, 26 USC 103(a). 459 US 394, n 3. Under 26 USC 103(a), federal taxable income included interest earned on the obligations of the United States and its instrumentalities, but did not include interest on state or municipal obligations. 459 US 394, n 3. The adjustment to federal taxable income that Tennessee utilized in determining net earnings included interest income from bonds and other obligations of other states or their political subdivisions, but no similar adjustment was made to include interest on obligations of the State of Tennessee or its political subdivisions. Id. The effect of this tax law was to require Tennessee banks to pay state taxes on earnings from federal obligations but not on earnings from Tennessee obligations.
The appellant bank contended that the bank tax violated 31 USC 742 (now 31 USC 3124) and was unconstitutional under the Supremacy Clause. Memphis Bank, 459 US 394-395. The Supreme Court agreed with the appellant on both points.
In order to decide the case, the Supreme Court turned to previous decisions, some going back as far as 1819, concerning the constitutional immunity granted to federal government property, including bonds and other securities. Id., 396-397. 31 USC 742 was really only a restatement of the constitutional rule. 459 US 397.
Under the constitutional rule of tax immunity established in McCulloch v Maryland, 4 Wheat 316, 4 L Ed 579 (1819), "States may not impose taxes directly on the Federal Government, nor may they impose taxes the legal incidence of which falls on the Federal Government.” United States v County of Fresno, 429 US 452, 459; 97 S Ct 699; 50 L Ed 2d 683 (1977) (footnote omitted). Where, as here, the economic but not the legal incidence of the tax falls on the Federal Government, such a tax generally does not violate the constitutional immunity if it does not discriminate against holders of federal property or those with whom the Federal Government deals. See, e.g., United States v County of Fresno, supra, at 459-464; United States v City of Detroit, 355 US 466, 473; 78 S Ct 474; 2 L Ed 2d 424 (1958). . . .
A state tax that imposes a greater burden on holders of federal property than on holders of similar state property impermissibly discriminates against federal obligations. . . .
It is clear that under the principles established in our previous cases, the Tennessee bank tax cannot be characterized as nondiscriminatory under § 742. Tennessee discriminates in favor of securities issued by Tennessee and its political subdivisions against federal obligations. The State does so by including in the tax base income from federal obligations while excluding income from otherwise comparable state and local obligations. We conclude, therefore, that the Tennessee bank tax impermissibly discriminates against the Federal Government and those with whom it deals. [459 US 397-399.]
The parties in the present case apparently concede that the holding in Memphis Bank invalidates MCL 206.34; MSA 7.557(134) and MCL 206.71; MSA 7.557(171). The dispute centers on whether the holding in Memphis Bank should be retroactively applied to plaintiffs request for a refund.
Since the decision in Memphis Bank was released, a few state courts have addressed the question whether that decision should be prospectively or retroactively applied to the various state bank tax laws that violated the holding in Memphis Bank.
In First Bank of Buffalo v Conrad, 350 NW2d 580, 585-586 (ND, 1984), the North Dakota Supreme Court held that because the plaintiff had not paid its taxes under protest, it could not seek a refund for taxes paid pursuant to statutes that Memphis Bank subsequently had invalidated. The opinion did not specifically address whether Memphis Bank should be prospectively applied, although the holding certainly suggests that it would only be applied prospectively in North Dakota.
In contrast, the Oklahoma Supreme Court addressed the issue precisely in First of McAlester Corp v Oklahoma Tax Comm, 709 P2d 1026, 1029 (Okla, 1985). By applying the three-part test from Chevron Oil Co v Huson, 404 US 97; 92 S Ct 349; 30 L Ed 2d 296 (1971), the court determined that only prospective application was warranted. The court reasoned that even though Memphis Bank was not completely unforeseen on the basis of past decisions, the ruling was not anticipated by the Oklahoma Legislature or tax commission and the state would suffer dire financial consequences if the decision were to be applied retroactively. 709 P2d 1034, 1036.
The Minnesota Supreme Court in Cambridge State Bank v Roemer, 457 NW2d 716, 722-723 (Minn, 1990), also utilized the Chevron Oil test in determining that the decision in Memphis Bank should be applied prospectively only. The court held that the decision in Memphis Bank was not foreseen and, therefore, should be treated as a new principle of law. The court found that the equities favored prospective application only, because the taxes collected had long since been spent and the granting of a refund would result in a windfall to the banks at issue.
More recently, however, the United States Supreme Court vacated that decision in Cambridge State Bank, sub nom Norwest Bank Duluth, NA v James, — US —; 111 S Ct 2881; 115 L Ed 2d 1047 (1991) , and remanded the case to the lower court for reconsideration in light of James B Beam Distilling Co v Georgia, 501 US —; 111 S Ct 2439; 115 L Ed 2d 481 (1991).
In Beam, although a majority of the justices were unable to agree on a single opinion, a consensus did emerge. At issue was whether a Georgia state tax on imported alcohol and distilled spirits at a rate double that for Georgia-produced products, previously held by the United States Supreme Court to be unconstitutional, should be applied retroactively or prospectively only. 115 L Ed 2d 486. The lower court in Beam applied the test from Chevron Oil and held that the previous Supreme Court decision should be applied prospectively only. 115 L Ed 2d 486-487. On appeal to the Supreme Court, that decision was reversed in favor of retroactive application._
From our reading of Beam, the Supreme Court has severely limited the doctrine of prospective-only application of decisions and has reverted back to the original rule, which provided for retroactive application unless the law changes in some significant manner. The rationale underlying retroactive application is that all similarly situated parties should be treated equally. In most cases, the equities factor discussed in Chevron Oil should not be the controlling consideration, because precedent in substantive law should not shift on the basis of the individual equities of a particular case. 115 L Ed 2d 493. Equities should only enter into the decision of what remedy should be used. Id.
On the basis of the Supreme Court’s decision in Beam, we believe the prior decisions from other jurisdictions that resulted in prospective application of Memphis Bank cannot be relied upon as precedent, because they were primarily concerned with equitable considerations rather than with focusing on the necessity to treat litigants equally under the law.
In addition, this Court has recently addressed the problem of retroactive application of United States Supreme Court decisions in Fonger v Dep’t of Treasury, 193 Mich App 71; 483 NW2d 920 (1992). In that case, the panel was faced with determining whether Davis v Michigan Dep’t of Treasury, 489 US 803; 109 S Ct 1500; 103 L Ed 2d 891 (1989), should be retroactively applied. Davis concerned whether federal pensions could be subject to state taxes when state pensions were not taxed likewise. This Court concluded that the Davis decision should be retroactively applied in light of Beam and noted that decisions from other states limiting Davis to prospective application were subsequently vacated and remanded by the United States Supreme Court for reconsideration under Beam. Fonger, supra.
In the case at bar, we believe the Supreme Court’s decision in Memphis Bank should be applied retroactively on the basis of the principles of equality and stare decisis as discussed in Beam, 115 L Ed 2d 491. We see no compelling reason to limit the decision in Memphis Bank to prospective application only where many of the principles underlying that decision were present before the case was decided, although the specific issue was not addressed until the Memphis Bank decision. Although pre-1959 Supreme Court decisions did not foreclose the belief that state taxes that were measured by net income that included federal obligations did not violate the Supremacy Clause, Congress responded to this discrepancy in 1959 by enacting 31 USC 742, thereby setting aside the pre-1959 approach to such tax laws. See National Bank of Alaska v Alaska Dep’t of Revenue, 769 P2d 990, 993-994 (Alas, 1989). Because Michigan’s tax on financial institutions was reenacted as part of the Income Tax Act of 1967, we believe the retroactive application of the decision in Memphis Bank is appropriate in this case. Equities should be considered only in determining what remedy should be provided.
Because the trial court never reached the issue of the remedy to which plaintiff was entitled, we remand this matter to the trial court for additional proceedings. Despite the preference expressed by the Legislature that any invalid portions of MCL 206.71; MSA 7.557(171) be taken care of by the application of subsection 3 of that section, we believe that applying subsection 3 may be inappropriate in this case, given the time that has passed. Therefore, the lower court should consider whether plaintiffs request for a refund is the only appropriate remedy.
Plaintiff has alternatively argued on appeal that selective application of Memphis Bank amounts to a denial of equal protection under the law. Given our conclusion that Memphis Bank is to be applied retroactively, we need not reach this issue.
m
Despite our conclusion that Beam supports retroactive application of Memphis Bank, a procedural bar, such as a statute of limitation, can still prohibit retroactive application of a decision, Beam, supra, 115 L Ed 2d 492. Defendants have argued, both below and on appeal, that this claim is barred by the running of the period of limitation for such actions under state law. We disagree.
Defendants contend that the limitation period found at MCL 206.441; MSA 7.557(1441) bars plaintiff’s request for a refund. That statute, in pertinent part, provided:
(2) A taxpayer who has paid a tax which he claims was not due under this act may, on or before the expiration date of 3 years from the date set for the filing of the annual or final return for the year or the date the tax was paid, whichever is later, and not after, petition the department in writing to refund the amount so .paid. . . .
However, MCL 206.411; MSA 7.557(1411) also addresses the period of limitation for tax cases, particularly tolling provisions. The relevant portion of MCL 206.411; MSA 7.557(1411), during the period that plaintiff’s action was pending, provided^_
(2) The running of the statute of limitations shall be suspended for the period pending final determination of litigation of or hearing on a taxpayer’s federal income tax return or of the return required by this act, or if a notice is required under section 325, and for 1 year thereafter.[ ]
It was established below that plaintiffs tax returns for 1974 and 1975 were involved in litigation before the Tax Tribunal until after this case was filed in the circuit court. The trial court ruled that the statute of limitations was tolled pursuant to the tolling provision of MCL 206.411(2); MSA 7.557(1411X2) because the 1974 and 1975 returns, and the 1971 return because of its relation-back status, were still in litigation.
We believe that the trial court reached a correct result. Both the Michigan Supreme Court and this Court interpreted MCL 206.411; MSA 7.557(1411), before recent amendments, as tolling the statute of limitations without regard to what issues were pending before the Tax Tribunal and held that this tolling provision also applied to refund claims, although the period of limitation for refunds was not addressed in MCL 206.411; MSA 7.557(1411). Clark-Gravely Corp v Dep’t of Treasury, 412 Mich 484, 488-489; 315 NW2d 517 (1982); Manufacturers Bank of Detroit v Dep’t of Treasury, 167 Mich App 467, 472-473; 423 NW2d 228 (1988); National Bank of Detroit v Dep’t of Treasury, 166 Mich App 218, 222-223; 420 NW2d 108 (1987). Although it appears the Legislature subsequently took steps to rectify this problem by enacting 1987 PA 254, which amended MCL 206.411; MSA 7.557(1411), and by enacting 1986 PA 58, which added MCL 205.27a(3); MSA 7.657(27a)(3), those changes are not applicable in this case. Accordingly, the trial court correctly held that plaintiffs circuit court action for a refund was filed timely, because the statute of limitations with respect to an action challenging tax liability and returns for the years in question was tolled pursuant to the provisions of MCL 206.411(2); MSA 7.557(1411)(2) before its 1987 amendment.
iv
Defendants, in their cross appeal, have also challenged the circuit court’s jurisdiction over this case. We initially note that plaintiff filed in the Court of Claims, the Ingham Circuit Court, and the Tax Tribunal. Defendants raised their jurisdictional challenge in the circuit court, which ruled that it had jurisdiction to decide this case and ordered that the matters in the Court of Claims and the Tax Tribunal be dismissed. We agree that there was subject-matter jurisdiction in the circuit court under the facts and law of this case.
We believe the lower court correctly referred to the legislative history of the financial institutions tax at issue to resolve the jurisdictional question in this case. Because plaintiffs request for a refund was based upon the tax as imposed under § 71 of the Income Tax Act of 1967, MCL 206.71; MSA 7.557(171), the analysis of this issue must start from the remedies provided taxpayers under that act. Section 421, MCL 206.421; MSA 7.557(1421), as enacted in 1967, provided that jurisdiction could be with the circuit court for Ingham County:
(3) Any taxpayer aggrieved by any determination of tax liability made by the department may appeal to the state board of tax appeals under the provisions of Act No. 122 of the Public Acts of 1941, as amended, being sections 205.1 to 205.17 of the Compiled Laws of 1948, or after payment of the amount of tax, interest and penalties found to be due by the department, he may bring an action in the circuit court of the county of Ingham to recover the amount paid. The action shall be commenced within 6 months after payment of the tax or after the adverse determination by the department of the validity of the taxpayer’s claim for refund, whichever occurs later, and shall be conducted in accordance with the statutes and rules of procedure concerning actions at law not inconsistent with the provisions of this act. [Emphasis added.]
The section creating the tax at issue, MCL 206.71; MSA 7.557(171), was repealed by 1975 PA 233. 1975 PA 233 involved not only both the amendment and addition of some sections of the Income Tax Act of 1967, but also the repeal of certain specific provisions. However, §421 was neither amended nor repealed by 1975 PA 233.
1975 PA 233 provided that the following sections were repealed:
Section 2. (1) Sections 32, 34, 61, 71, 81, 125, 151, 211, 221, 258, 321, 335, 336 and 341 of Act No. 281 of the Public Acts of 1967, as amended, being sections 206.32, 206.34, 206.61, 206.71, 206.81, 206.125, 206.151, 206.211, 206.221, 206.258, 206.321, 206.335, 206.336 and 206.341 of the Compiled Laws of 1970, are repealed.
(2) A final return shall be filed and the tax shall be paid as determined under the provisions of sections 61 and 71 of Act No. 281 of the Public Acts of 1967, as amended, on or before April 15, 1976, as required by this section, by a corporation subject to the provisions of that act.
(3) A calendar year taxpayer shall file a final return and pay the tax imposed by the act for the calendar year of 1975.
(4) A fiscal year taxpayer shall file a final return for a partial year from the end of his fiscal year ending in 1975 to December 31, 1975, and pay the tax imposed by that act.
(5) The provisions of Act No. 281 of the Public Acts of 1967, as amended, shall continue in effect for the collection and enforcement of the payment of any tax, penalty, or interest due and payable by a corporation under the act for any períod in which it was in effect prior to the repeal of sections 61 and 71 of Act No. 281 of the Public Acts of 1967, as amended, and for the collection and enforcement of the payment of any tax, penalty, and interest in connection with the final return required by this section. [Emphasis added.]
Simultaneously with the amendment of the Income Tax Act of 1967 to eliminate the tax on financial institutions and other taxes, the Single Business Tax Act, 1975 PA 228, MCL 208.1 et seq.; MSA 7.558(1) et seq., was enacted to provide for a tax on financial activities beginning January 1, 1976. It is apparent that the Legislature, in making the changes in the tax laws, intended that financial institutions would continue to be subject to the provisions of § 71 of the Income Tax Act, MCL 206.71; MSA 7.557(171), with respect to the 1975 and previous tax years, with the Single Business Tax Act being applicable to the 1976 and later tax years. However, it is not clear if it was intended that remedial procedures likewise would be continued as they existed under the Income Tax Act of 1967 with respect to returns filed for the 1975 and previous tax years. To resolve this question, we must resort to rules of statutory construction.
The cardinal rule of statutory construction is to ascertain and give effect to the Legislature’s in tent. Melia v Employment Security Comm, 346 Mich 544, 562; 78 NW2d 273 (1956); Kizer v Livingston Co Bd of Comm’rs, 38 Mich App 239, 246; 195 NW2d 884 (1972). We also note that special rules apply in interpreting tax laws. Generally, the scope of tax laws will not be extended by implication or forced construction. Hart v Dep’t of Revenue, 333 Mich 248, 251; 52 NW2d 685 (1952). Where there is doubt over the interpretation, tax statutes are construed most strongly against the government. Id., 252.
Defendants contend that this case should not have been filed in Ingham Circuit Court because §421, which provided the Ingham Circuit Court with jurisdiction, was repealed and reenacted as MCL 205.22; MSA 7.657(22). The new statute, which was adopted by 1980 PA 162, provides for exclusive jurisdiction in the Court of Claims or alternatively in the Tax Tribunal. Defendants argue that any action for the refund of taxes paid in 1974 and 1975 under MCL 206.71; MSA 7.557(171) that was filed on or after September 16, 1980, the effective date of 1980 PA 162, is subject to the amended rule regarding jurisdiction. We believe that 1975 PA 233, which repealed the income tax on financial institutions, saved many of the procedural requirements for the processing of claims concerning taxes paid under that repealed provision.
Our analysis of this issue is guided by the reasoning of the Court in Federal-Mogul Corp v Dep’t of Treasury, 161 Mich App 346; 411 NW2d 169 (1987). In Federal-Mogul, the Court addressed the problem whether franchise fees refunded under the franchise fee act could include an award of interest. The franchise fee act did not provide for any award of interest, but the recently added Department of Revenue act did provide for awards of interest. Id., 348-349. The problem resulted from the fact that the franchise fee act was repealed by 1975 PA 230, to be replaced by the Single Business Tax Act, but 1975 PA 230 provided that its repeal date extended as necessary for the enforcement and collection of franchise fees due before the repeal of that act. 161 Mich App 349-350. Because of the lack of clarity surrounding application of the Department of Revenue act to the franchise fee act, the panel concluded that 1975 PA 230 retained its full force and effect for the handling of refund claims under the franchise fee act. 161 Mich App 365-366.
In the case at bar, we are faced with much the same dilemma that confronted the panel in Federal-Mogul. From what we can glean from 1975 PA 233, the Legislature intended that the Income Tax Act of 1967 would continue to control any remaining issues over taxes imposed under the repealed financial institutions provisions, specifically the procedures for collection and enforcement. If procedural rules were preserved for enforcement and collection, it is only logical to conclude that refund procedures were also intended to be preserved.
We have not found in the language of 1980 PA 162 or the legislative analysis to House Bill 4718 any expression that the Legislature intended to apply the provisions of the Department of Revenue act, particularly MCL 205.22; MSA 7.657(22), to the resolution of disputes concerning the liability of financial institutions for income taxes imposed by MCL 206.71; MSA 7.557(171). While it is clear that 1980 PA 162 was intended to apply to state income taxes, we believe that had the Legislature intended the enactment of 1980 PA 162 to also repeal the portion of 1975 PA 233 that continued the dispute resolution procedures in effect at the time of the repeal of the income tax on financial institutions, it would have expressly stated that intent. As the trial court noted, repeal by implication is not favored, Flynn v City of Fraser, 45 Mich App 346, 349-350; 206 NW2d 448 (1973), rather, there must be a clear showing of a legislative intent to repeal, Gauthier v Campbell, Wyant & Cannon Foundry Co, 360 Mich 510, 524; 104 NW2d 182 (1960). Because both 1980 PA 162 and 1975 PA 233 can be read together without contradiction, this Court will not imply an intent to repeal. People v Harrison, 194 Mich 363, 370-371; 160 NW 623 (1916).
On the basis of our review of the statutes at issue and the legislative history available, we believe that the Ingham Circuit Court correctly determined that it had jurisdiction in this case to entertain plaintiffs request for a refund.
Affirmed in part, reversed in part, and remanded for additional proceedings. Plaintiffs request for costs and damages under MCR 7.216(C)(1) (a) is denied. We do not retain jurisdiction.
We note that defendants have argued that this Court should follow the Minnesota Supreme Court’s decision in Cambridge State Bank after remand, Cambridge State Bank v James, 480 NW2d 647 (1992) . We decline to follow that decision at the present time, because it addresses the remedy available under state law, which we believe the trial court must first address.
Amended in 1980 to a four-year limitation period and eventually repealed in 1990.
The language cited is from the statute as amended by 1980 PA 169; however, the 1980 changes in the statute were minor and do not affect our analysis.
See also Michigan Manufacturers Ass’n v Director, Workers’ Disability Compensation Bureau, 134 Mich App 723, 729; 352 NW2d 712 (1984) ("It has been held that an act which adopts by reference the whole or a portion of another statute or code incorporates the standard as it existed at the time of the adoption, and does not include subsequent modifications, amendments, or variations to the adopted statute or code. But, the adoption by reference of future legislation and rules are unconstitutional.”). | [
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Memorandum Opinion.
Defendant pled guilty to the added count of attempted larceny in a building. The people have filed a motion to affirm. A review of the briefs and record in this cause make it manifest that the question sought to be reviewed is so unsubstantial as to need no argument or formal submission.
Affirmed. | [
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Danhof, J.
After a jury trial the defendant was convicted of sale of narcotics. MCLA 335.152; MSA 18.1122. He now appeals and we affirm.
The defendant’s first contention is that the trial court allowed an improper reference to other offenses. In his opening statement the prosecutor stated that he would prove that on an occasion subsequent to the crime charged the defendant was involved in an attempted sale of narcotics. The defendant objected and, in the absence of the jury, moved for a mistrial on the ground that the prosecutor had made an improper reference to a separate offense. The prosecutor argued that he would produce evidence that would be admissible under MCLA 768.27; MSA 28.1050 as tending to show a “scheme plan or system”. On the facts of this case this testimony would have been admissible. People v Plummer, 189 Mich 415 (1915); People v Anderson, 13 Mich App 247 (1968).
The trial court denied the motion for a mistrial but granted the defendant’s motion that proof be confined to the date mentioned in the information, and the jury was informed that proof was limited to that date. We hold that the motion for a mistrial was properly denied. When the court granted the motion to limit proof to the date given in the information it granted the defendant more than he was entitled to as a matter of right, and therefore, the defendant cannot urge this point as error.
The defendant contends that it was error to allow several references to an undercover police officer being in danger. The defendant did not object to these references and he cannot raise this issue for the first time on appeal. People v Borowski, 330 Mich 120 (1951); People v Miner, 22 Mich App 673 (1970).
The defendant contends that it was error to deny his motion to indorse the name of an alleged res gestae witness, one Tyrone Peck, on the information. The defendant argues that the trial court made inconsistent rulings in allowing testimony regarding an utterance made by Peck as part of the res gestae, and then ruling that Peck was not a res gestae witness. This argument must fail because it does not distinguish between a res gestae statement and a res gestae witness. These are two very different things and they have little in common.
The term “res gestae” has been used to justify the admission of testimony which would otherwise he inadmissible as hearsay. Examples of the types of statements which have been called res gestae are (1) declarations of present bodily condition, (2) declarations of present mental states and emotions, (3) excited utterances, and (4) declarations of present sense impressions. The term “res gestae” has also been used to describe statements that are not hearsay and this fact illustrates the indiscriminate coverage of the term. McCormick on Evidence § 274.
The use of the term “res gestae” has been strongly criticized. 6 Wigmore, Evidence, § 1767. While the term continues to be used the more specific analysis advocated by Wigmore is surely more conducive to clarity of thought. See Wigmore, Evidence, §§ 1767-1769; McCormick on Evidence §§ 265-274. However, as long as the usage continues it is important to distinguish between a res gestae statement and a res gestae witness.
A res gestae witness may be broadly defined as. a witness whose testimony is necessary to illuminate some important aspect of the case. This obviously has nothing to do with whether or not a hearsay objection should be sustained. On the record before us it is difficult to say whether or not Peck was a res gestae witness. However, his existence became known at least as early as the time of the preliminary examination. When a res gestae witness has not been indorsed his indorsement must be sought within a reasonable time after his existence is discovered. People v Dimitro ff, 321 Mich 205 (1948); People v Amos, 10 Mich App 533 (1968). In this case the defendant did not seek indorsement until after the prosecution had rested its case.
The defendant contends that a reversal is required because of a remark by the prosecutor, in his opening statement, that possession of any amount of heroin was a violation of the law. The defendant relies on People v Harrington, 33 Mich App 548 (1971) where we held that when a defendant has been found in possession of minute quantities of heroin it must be determined, on all the facts and circumstances of the ease, that the quantity of narcotics actually discovered is a remnant of a larger usable amount.
This case is distinguishable from Harrington. In Harrington the defendant was in possession of an amount of heroin that was clearly less than a usable amount. In this case the record clearly shows that a usable amount of heroin was involved. Furthermore, in this case the trial court instructed the jury that in order to be guilty the defendant must have had knowledge that he was dealing with heroin and the intent to deal with heroin.
Affirmed.
All concurred. | [
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J. H. Gillis, J.
This case involves a trespass action brought against the City of Flint. On November 26, 1969, a jury returned a verdict of no cause for action based on plaintiffs’ claim.
Plaintiffs were the owners of a house located in the City of Flint. The house and its contents, in- eluding items of personal property belonging to the plaintiffs, were destroyed in the fall of 1965 by the Flint Department of Public Works, acting pursuant to a resolution of the Flint City Commission and allegedly in accordance with the provisions of ordinance No 1762 of the City of Flint.
The house in question had stood unoccupied since 1960. Testimony at trial indicated that in late August 1965, the house was in a deteriorating condition. Some windows were broken and others were boarded up. When the rains came the roof leaked, and the kitchen floor was covered with wet straw. Along the east side of the house, 10 to 12 feet of the foundation had caved in. Wallpaper was peeling off the walls along with the plaster. Spiders spun their webs in many of the rooms. Furniture had been vandalized and the rooms were full of debris. Outside, the yard surrounding the house was overgrown with weeds and littered with cans and other refuse; the garage was collapsing; and the house appeared to have been open to unauthorized entry.
City officials testified as to the above conditions, but they admitted that they had observed the interior of only a portion of the first floor rooms. These officials concluded that the cost of rehabilitating the house, so as to make it comply with the standards set up in the housing code, would exceed its assessed valuation.
On two occasions the plaintiffs were given notice to clean up the yards about the house. On August 13, 1965, the director of buildings and inspections sent the following letter to the fire marshal concerning the premises:
“This property is owned by [the plaintiff Louilla Himes]. The house is valued on the assessor’s records at $2,520.
“The house is in very poor condition with the foundations falling in, roof leaks, plaster falling off, completely open to unauthorized entry and full of debris. An old garage in the rear is falling down.
“The yard area is overgrown with brush and weeds.
“The house cannot be brought into a habitable condition for less than the assessed value and would cost much more to bring it up to code requirements.
“It is a dangerous building in its present condition and removal is recommended.
“It is in the path of the N S Expressway.”
Thereafter, a notice dated August 31, 1965, was sent to the plaintiffs by the deputy fire marshal, which read in substance:
“Fire Prevention Bureau
“Flint Fire Department
“Notice of Violations Date: August 31,1965
“Inspection of the premises located at: [address of house] reveals violations of the Michigan Housing Law and/or Fire Prevention Ordinance, or related City ordinances.
“Please comply with the following orders on or before September 10,1965.
“The building at the above address is in very poor condition: foundations falling in, roof leaks, plaster falling off and the structure is open to unauthorized entry and is full of debris.
“The garage has fallen down and the yard is overgrown with weeds and brush and debris.
“The building shall be torn down and all debris and weeds removed from the premises. If the work required is not completed, the City of Flint shall do the work required and the cost of such work shall be assessed to the tax roll as provided in Ordinance 1762.”
This notice was received by the plaintiff Louilla Himes on September 2,1965.
On or about October 18, 1965, the city had the building in question torn down, and the personal property situated therein was likewise destroyed. More than two years later, on November 20, 1967, plaintiffs brought this suit seeking damages for the loss of the building and the personal property.
Prior to trial the plaintiffs moved for a summary judgment on the question of the city’s liability upon the theory that the notice was defective and inadequate as a matter of law. However, the trial court ruled:
“It is the court’s belief that the key issue in this motion is whether the notice served upon the plaintiff by defendant City of Flint was such that a reasonable person would be put on notice that certain serious defects exist on the premises which would justify the demolition of plaintiff’s building. It is the court’s belief that a genuine issue of fact exists relative to the appropriateness of the notices in question and the appropriateness of the response of plaintiffs to the notice, and that the existence of such factual issues prevents the entry of a summary judgment. The issues will be submitted to the trier of facts at the time of trial.”
Plaintiffs now claim that the trial court erred in denying this motion for a summary judgment.
Besides providing that notice be given to one who violates the housing standards established by the city ordinance, § 134.22 of the ordinance also directs that such notice “shall” :
“(a) Be in writing;
“(b) Specify in detail the violation or violations, together with the respective sections of the code violated;
“(c) Set a reasonable time, not to exceed ninety-days in any event, for the performance of any act it requires;
“(d) Contain an outline of remedial action, which, if taken, will effect compliance with the provisions of this Code;
“(e) Advise the owner or occupant of the procedure for appeal;
“(f) Be served upon the owner or occupant # # * »
The plaintiffs maintain that the notice that was sent to them was inadequate as a matter of law for failure to meet at least three of the mandatory standards prescribed by the ordinance. The faults which are most obvious concern the failure of the notice to (a) list the alleged violations with citations to the specific ordinance sections violated, (b) contain an outline of remedial action which, if taken, would effect compliance with the code provisions, and (c) advise the plaintiffs of the appeal procedure.
The City of Flint argues, however, that the notice substantially complied with the ordinance, and thus was adequate as a matter of fact or law. Its position is supported by the following: the alleged violations, although not precisely listed, were set forth, and the ordinance itself was mentioned in general terms; the remedial action suggested by the notice, that of removal, was the only remedial action logically appropriate under the set of facts involved; and, finally, a reasonable man upon receipt of such notice would make further inquiries which would lead to an appeal if warranted. The trial judge was persuaded by these considerations to believe that the adequacy of the notice presented a question of fact for the jury.
The issue confronting us being whether or not the notice complied with the ordinance and procedural due process, it is clear such determinations are questions of law for the judge to decide and not questions of fact for a jury. Sapiente v Waltuch, 127 Conn 224, 226; 15 A2d 417-418 (1940); Pander v French, 3 Conn Cir 383; 215 A2d 690 (1965). It cannot be said from a reading of the notice that the mandatory contents were impliedly, or expressly, included therein. Since the directives are mandatory, the city commission has determined that there shall be no room for administrative discretion to omit a portion of the contents of a notice whenever it appears to be unnecessary in the circumstances of an individual violation.
The concept of “substantial compliance” can only be drawn upon in situations where the provisions of the notice are ambiguous. In such cases the court would then determine whether the notice “substantially complied” despite the ambiguity. However, the presently considered notice does not fall within this category — there being no language which could be construed as complying with the mandatory content requirements.
Not only are notice requirements specifically protected by the ordinance in question, but they are also constitutionally preserved. The United States Supreme Court has said:
“The fundamental requisite of due process of law is the opportunity to be heard. [Citations omitted.] And it is to this end, of course, that summons or equivalent notice is employed.” Grannis v Ordean, 234 US 385, 394; 34 S Ct 779, 783; 58 L Ed 1363, 1369 (1914).
There are two potential defects in notice: (1) the notice may not be reasonably calculated to reach the party — Mullane v Central Hanover Bank & Trust Co, 339 US 306; 70 S Ct 652; 94 L Ed 865 (1950); Schroeder v City of New York, 371 US 208; 83 S Ct 279; 9 L Ed 2d 255; 89 ALR2d 1398 (1962); or (2) the notice may not contain the requisite content.
“While ‘many controversies have raged about * * * the Due Process Clause,’ Mullane v Central Hanover Bank & Trust Co, 339 US at 313, 70 S Ct at 656, 94 L Ed at 872, it is fundamental that except in emergency situations (and this is not one) due process requires that when a State seeks to terminate an interest such as that here involved, it must afford ‘notice and opportunity for hearing appropriate to the nature of the case’ before the termination becomes effective.” Bell v Burson, 402 US 535, 542; 91 S Ct 1586, 1591; 29 L Ed 2d 90, 96 (1971) (concerning the suspension of a driver’s license).
Various cases may be cited for the proposition that notice requirements need only be substantially complied with. Meredith v Melvindale, 381 Mich 572 (1969); Paul v Swartz Creek, 32 Mich App 472 (1971). However, their application to the present case is improper in that the situation in the above cases involved notice from a citizen to a governmental unit. Due process is imposed upon the State and its agencies, not upon citizens. The Courts in the cited cases were concerned only with the legislative intention behind the notice requirement as provided for in the applicable ordinance or statute. This is made clear by the Court in Meredith when it stated:
“Our courts are inclined to favor a liberal construction of notice requirements so long as they tend in that direction and are not misleading. See Ridgeway v City of Escanaba, 154 Mich 68 (1908). See, also, Chief Justice Dethmers’ opinion in Penix v City of St. Johns, 354 Mich 259 (1958).
“This judicial policy favoring a liberal construction is based on the theory that the inexpert layman with a valid claim should not be penalised for some technical defect.” Meredith, supra, at 579. (Emphasis supplied.)
Furthermore, the Supreme Court of this state in Trellsite Foundry & Stamping Co v Enterprise Foundry, 365 Mich 209, 214-215 (1961), said:
“Naturally, a statutory provision affecting private substantive rights in the interests of the general welfare might be reasonable and hence valid in its application to certain circumstances and the reverse as applied to others. The test of reasonableness has not, however, been applied to the right of procedural due process. It is absolute. Statutory enactments authorizing proceedings for taking life, liberty, or property without providing for procedural due process therein cannot stand under constitutional enactments. As applied to the instant case, the apportionment provision of the statute, in failing to provide for notice of hearing on compensation to prior employers, is unconstitutional, leaving no legal basis for a right of apportionment or contribution, regardless of whether notice is or is not served on former employers in a given case.” (Emphasis supplied.)
Therefore, not only did the notice fail to comply with the mandatory provisions of the applicable ordinance but it also was constitutionally defective in that it did not advise plaintiffs of their right to a hearing before the city board of appeals prior to demolition. Consequently, we reverse the trial court’s denial of the motion for summary judgment as to liability of the City of Flint for its failure to provide sufficient or adequate notice prior to proceeding with the demolition of plaintiffs’ property.
The demolition constituted a trespass. A retrial should be had on the question of damages, if any. Reversed and remanded. Costs to appellants.
All concurred.
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Memorandum Opinion.
Defendant was tried and convicted of breaking and entering an occupied dwelling and appeals. A motion to affirm has been filed by the people.
Upon examination of the briefs and record, it is manifest that the question sought to be reviewed is so unsubstantial as to need no argument or formal submission.
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Levin, J.
The defendant, Mitchell Dunn, shot a police officer with a shotgun during a struggle with the officer who was attempting to arrest Dunn. Dunn was charged with the offense of assault with intent to commit murder. MCLA 750.83; MSA 28-.278. His trial was interrupted when he offered to plead guilty to that offense. His plea was accepted. He now appeals.
During the bench questioning Dunn asserted that, although he intended to shoot the officer, he did not “necessarily” intend to kill him:
“Q. What did you intend to do with that gun; what was in your mind to do with that gun when you were tussling with him?
“A. I don’t understand.
“Q. You were tussling with the officer, weren’t you?
“A. Yes, sir.
“Q. You had the gun in your left hand?
“A. That’s right.
“Q. What were you thinking to do with that gun while you were wrestling with the officer?
“A. To shoot him.
“Q. To shoot him?
“A. Yes.
“Q. Did you intend to kill him?
“A. Not necessarily.
“Q. Where did you intend to shoot him; did you shoot him where you intended to ?
“A. I didn’t have any specific spot to shoot him in.
“Q. What kind of gun was that?
“A. Sawed-off shotgun.
“Q. A 12-gauge sawed-off shotgun?
“A. Yes, sir.
“Q. Do you know what part of his body he was shot in?
“A. I know now; I didn’t know at the time.
“Q. You had a sawed-off shotgun?
“A. Yes, sir.
“Q. You were tussling with the officer?
“A. Yes, I was.
“Q. You intended to shoot him?
“A. Yes, sir.
“Q. You shot him, and you knew you were shooting him; is that right?
“A. Yes, I did._
“Q. And you didn’t care what part of his body you shot him in?
“A. That’s right.”
Dunn contends that since he did not unequivocally admit that he intended to kill the officer the judge should not have accepted his plea of guilty.
In People v Rufus Williams, 386 Mich 277 (1971), the Michigan Supreme Court recently reiterated its firm adherence to the Barrows requirement that before accepting a plea of guilty the judge must, by direct questioning of the defendant, establish the crime and the defendant's participation in its commission.
In People v Bartlett, 17 Mich App 205, 208-209 (1969) , we declared:
“The court rule does not, however, require that the offense to which the defendant pleads guilty must be established beyond peradventure before the trial judge may accept a proffered plea of guilty. It requires, in the words of the Barrows Court (p 272), ‘reasonable ascertainment of the truth of the plea.’
“Doubt as to the defendant’s guilt, even if entertained by the accused person himself, does not necessarily preclude a trial judge from accepting a plea of guilty. If the trial judge, after the direct questioning of the defendant required by the court rule and Barrows, ascertains that there is a factual basis for the plea, that the plea is a truthful, honest plea of guilty to an offense of which the accused person might well be convicted upon trial, then the truth of the plea has been reasonably ascertained.”
Similarly, see People v Stoner, 23 Mich App 598, 608 (1970).
On the strength of his answers to the judged questions, Dunn most assuredly could have been convicted of assault with intent to commit murder. Dunn stated that while he was holding the shotgun he was thinking of shooting the officer, that he intended to shoot him, that he shot the officer, that he knew he was shooting him, and that when he shot the officer he did not care what part of the officer’s body he shot. Even though Dunn said that he did not “necessarily” intended to kill the officer, a trier of fact — judge or jury — would have been entirely justi fied in concluding from Dunn’s own words that he did assault the officer with intent to kill him. Since there was enough to support a finding or verdict of guilty following a trial, surely there was enough to support a plea of guilty.
In contrast with People v Richard E Johnson, 8 Mich App 204, 210 (1967), and People v William Thomas, 36 Mich App 589 (1971) , here there was no inconsistency between Dunn’s statements and the finding implicit in the acceptance of his plea; at the time Dunn’s plea was offered he did not assert that he did not intend to kill the officer. Nor is this a case like People v Stoner, supra, where the defendant Stoner denied that he had a clear recollection of what occurred when the crime was committed, or People v Blewett, 382 Mich 793 (1969), reversing without opinion People v Blewett, 18 Mich App 327 (1969), where the defendant Blewett stated that he was not sure whether he was guilty or wished to plead guilty. Cf. People v Anderson, 23 Mich App 9 (1970).
After Dunn was sentenced, he moved in the trial court to withdraw his plea of guilty and proceed to a trial on the merits on the ground that his plea was. induced by an unkept promise that other charges pending against him would be dropped. At the hearing on the motion Dunn, an assistant prosecuting attorney and two lawyers who represented Dunn testified. The judge found that the claimed promise had not been made. We conclude on our examination of the record (that the judge’s finding is not clearly erroneous.
Affirmed.
Lesinski, C. J., concurred.
People v Barrows, 358 Mich 267 (1959).
See, also, People v Sylvester Johnson, 25 Mich App 258 (1970).
Cf. People v Morrin, 31 Mich App 301, 311 (1971).
Similarly, see People v Mason, 13 Mich App 277 (1968); People v Greger, 16 Mieh App 59 (1969). See, also, People v Sylvester Johnson, supra; People v Collins, 380 Mich 131 (1968).
Blewett’s plea was accepted when he stated that he was sure he did not want to go to trial.
See People v Melvin Harris, 36 Mich App 231 (1971). | [
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T. M. Burns, J.
Appeal by the State Highway Commission from a pretrial evidentiary ruling in favor of respondents limiting the introduction of evidence for the purpose of determining damages to the date of the taking, July 30, 1968.
Respondents (hereinafter referred to as defendants) owned an “L” shaped parcel of land in the northeast quadrant on the Maple Road-Telegraph Road intersection in Bloomfield Township. A two-story veterinary hospital is located near the front of the property.
For purposes of highway construction, the Highway Commission proposed to condemn and take portions of the parcel, consisting of the fee to the Maple Road right-of-way easement, a 16-foot strip to widen the right-of-way, and an irregular portion from the rear of the parcel to be used for a limited access “New Jersey turn” roadway. Two preliminary appraisals obtained by the commission valued damages to defendants’ property at $62,200 and $78,000. On that basis, the commission made a “good faith writ ten offer to purchase” defendants’ property for $62,-200. MCLA 213.366; MSA 8.261(6). This offer was rejected; and on July 30, 1968, the commission filed a petition and declaration of taking in Oakland County Circuit Court. The amount of $62,200 was paid to defendants, and the state took possession of and title to the property under MCLA 213.369; MSA 8.261(9).
The original appraisals were based upon tentative construction plans which would have severely limited the use of the existing driveway which provides access to a rear parking lot. Without use of the parking lot, defendants’ building was worth much less to defendants, thus the damage appraisals of $62,200 and $78,000.
Contracts were not let, however, until May 7,1969. On June 3, 1969, certain changes were made in the plans which gave defendants some access to the parking lot without destroying their building. Therefore, the commission hired a third appraiser to make a reappraisal of defendants’ damages in light of the change in plans. The appraiser, who had previously appraised the damages based upon the original plans at $79,600, appraised defendants’ damages based upon the revised plan at $25,650.
In the condemnation proceeding below, the trial court, by way of a pretrial order, ruled that evidence for the determination of damages would be determined as of the date of the taking, thus preventing the commission from showing the change in plans with the consequent reduction in damages. It is from the court’s pretrial ruling that the plaintiff appeals.
The issue for this Court to decide may be stated thus:
May evidence of facts in mitigation of condemnation damages arising subsequent to the taking of private property by the condemning authority under 1966 PA 295, as amended, be admitted in evidence at the trial of damages f
Const 1963, Art 10, § 2, provides:
“Private property shall not be taken for public use without just compensation therefore being- first made or secured in a manner prescribed by law. Compensation shall be determined in proceedings in a court of record.”
Thus, property may not be taken without compensation being paid or secured in a manner prescribed by law. The manner prescribed by law is as follows:
“Sec. 9. If no motion for review is filed within the time specified in section 8, upon filing a declaration of taking and depositing with the city, village, county or state treasurer the amount of the estimated compensation the title to the property described in the declaration of taking shall vest in petitioner, who shall forthwith record a copy of the declaration of taking with the register of deeds of the county. The right to just compensation shall then vest in the persons entitled thereto and be secured as herein provided. The deposit shall likewise be made and title vest as hereinbefore provided if, after a hearing or appeal such motion is denied.” MCLA 213.369; MSA 8.261(9).
Defendants contend that under the above section title to the estimated just compensation vests in them at the time of the taking. However, the section does not provide that the “estimate of just compensation” deposited by the condemnor vests in the condemnee at the time of the taking. The section provides only that at the time title to the property vests in the condemnor, the “right to just compensation” vests in the condemnee.
The commission does not argue that it 'should be allowed to introduce evidence pertaining to the value of the land after tbe date of the taking. Such evidence is prohibited by MCLA 213.389; MSA 8.261 (29). What it does argue is that it should be allowed to prove that a reduction in defendants’ damages has occurred due to a change in plans that has greatly increased the utility and value of defendants’ remaining property, i.e., the building.
We find no prohibition in the constitution, the cases, or the statutes to prevent plaintiff from proving that defendants have been damaged significantly less than it appeared they would be on the date of the taking.
The United States Supreme Court, in interpreting a statute similar to Michigan’s “quick take” statute stated:
“Examination of the Act of February 26, 1931, discloses that the declaration of taking is to ibe filed in the proceeding for condemnation at its inception or at any later time.
“When the declaration is filed the amount of estimated compensation is to be deposited with the court, to be paid as the court may order ‘for or on account’ of the just compensation to be awarded the owners. Thus the acquisition by the Government of title and immediate right to possession, and the deposit of the estimated compensation, occur as steps in the main proceeding.
“The purpose of the statute is two-fold. First, to give the Government immediate possession of the property and to relieve it of the burden of interest accruing on the sum deposited from the date of taking to the date of judgment in the eminent domain proceeding. Secondly, to give the former owner, if his title is clear, immediate cash compensation to the extent of the Government’s estimate of the value of the property. The Act recognizes that there may he an error in the estimate and appropriately provides that, if the judgment ultimately awarded shall he in excess of the amount deposited, the owner shall recover the excess with interest. But there is no correlative provision for repayment of any excess by the owner to the United States. The necessary result is, so the respondents say, that any sum paid them in excess of the jury’s award is their property, which the United States may not recover.
“All the provisions of the Act taken together require a contrary conclusion. The payment is of estimated compensation; it is intended as a provisional and not a final settlement with the owner; it is a payment ‘on account of’ compensation and not a final settlement of the amount due. To hold otherwise would defeat the policy of the statute and work injustice; would be to encourage federal officials to underestimate the value of the property with the result that the Grovernment would be saddled with interest on a larger sum from date of taking to final award, and would be to deny the owner the immediate use of cash approximating the value of his land.” United States v Miller, 317 US 369, 380-381; 63 S Ct 276, 283-284; 87 L Ed 336, 346-347; 147 ALR 55, 65-66 (1943).
Similarly, in United States v Catlin, 142 F2d 781, 784 (CA7, 1944), aff’d 324 US 229 ; 65 S Ct 631; 89 L Ed 911 (1945), the Court noted:
“The government is not required to file a Declaration of Taking. Such procedure is optional. If it elects, however, to do so, it is required to estimate the value of the property taken and make such sum available as compensation to the landowner. Such action is merely tentative, and, as already pointed out, the amount awarded may be increased or decreased by final judgment.”
Since we are dealing here not with the value of the property taken, but rather with the damage done to the residue as a result of the taking, we find no bar to the introduction of evidence bearing on those damages despite the fact that the evidence concerns facts occurring after the date of the taking. The trial court’s ruling excluding such evidence was, therefore, in error.
Reversed and remanded.
All concurred.
Federal Declaration of Taking Act, § 1 et seq., 46 Stat 1421 (1931) ; 40 TTSCA 258a-258e.
MCLA 213.361 et seq.; MSA 8.261(1) et seq. | [
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Memorandum Opinion.
Defendant was convicted of felonious assault and he appeals. The people have filed a motion to affirm.
Upon examination of the briefs and record, it is manifest that the questions sought to be reviewed are so unsubstantial as to need no argument or formal submission.
Motion to affirm granted* | [
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R. B. Burns, J.
Plaintiff sought damages sustained in an accident occurring on November 4,1967. He filed suit against three defendants: Donald R. Campbell, the alleged negligent driver of the other automobile; James Campbell, defendant’s father and owner of the other automobile which Donald was driving; and Raymond C. Chahorski, d/b/a Eastgate Inn which was alleged to have served in toxicating beverages to Donald while he was in an intoxicated condition and while he was under the age of 21 years.
On June 24, 1970, the defendant, James Campbell, filed a cross-claim against Raymond C. Chahorski, d/b/a Eastgate Inn, seeking indemnity from the tavern for any damages which James Campbell might suffer as the owner of the car which Donald was driving.
Chahorski moved for an accelerated judgment on the cross-claim on the basis that the statute of limitation imposed by the dramshop act (MCLA 436.22; MSA 18.993) barred the action. The motion was denied.
Both Donald and James Campbell were uninsured motorists and the Michigan Secretary of State intervened as a party defendant for the Motor Vehicle Accident Claims Fund.
Subsequent to the accident, but prior to the suit, plaintiff received from his own insurance company, under an uninsured motorists provision, the sum of $10,000, and $3,365.68 in siek pay benefits under a group insurance program maintained by his employer. Defendants did not ask that the sums be set off or considered in the principal suit.
The jury returned a verdict in favor of plaintiff and a judgment was entered against Donald Campbell in the sum of $17,500. A second judgment was entered against James Campbell in the sum of $17,-500 and a third judgment was entered against Raymond Chahorski, doing business as Eastgate Inn, in the sum of $17,500.
Plaintiff filed a writ of garnishment against Transamerica Insurance Co., Eastgate’s insurance carrier under its liquor bond (maximum liability $5,000). Transamerica denied liability.
The trial court granted a judgment against Transameriea Insurance Co., the garnishee defendant, in the amount of $5,000.
Defendant Chahorski appeals the trial court’s denial of his motion for an accelerated judgment to dismiss James Campbell’s cross-claim on the basis that the two-year statute of limitation as set out in the dramshop act, supra, had expired.
The cross-claim filed by James Campbell against Chahorski has not been determined on its merits. Denial of Chahorski’s motion for an accelerated judgment was not a final judgment disposing of the issue but an interlocutory order. Interlocutory orders are reviewed in this Court on application for leave to appeal. GCR 1963, 806.2. Defendant Chahorski’s claim of appeal on the issue is premature.
Defendant Chahorski also contends that he is entitled to have the amounts collected by the plaintiff from (a) his own insurance carrier under the uninsured motorists provision contained in his insurance policy, (b) a group insurance program maintained by the plaintiff’s employer, and (c) the Motor Vehicle Accident Claims Fund, set-off against his liability to plaintiff under the dram-shop act, supra.
As a g’eneral rule the diminution of recovery from a tortfeasor by sums the injured party has received from independent sources is not permitted. Squires v Kalamazoo County Road Commissioners, 378 Mich 613 (1967). The policy supporting this rule was quoted from Campbell v Sutliff, 193 Wis 370, 214 NW 374; 53 ALR 771 (1927), in the case of Motts v Michigan Cab Co, 274 Mich 437, 445 (1936):
“ ‘We see no reason why one whose acts have caused injury to another should reap the entire benefit that comes from the payment of wages made by an employer, either as a gratuity to a faithful employee or because such payments are required by contract. Such payments do not change the nature of the injury which the employee sustains through the wrongful acts of the tortfeasor. If either is to profit by the payments made by the employer, it should be the person who has been injured —not the one whose wrongful acts caused the injury.’ ” (Emphasis supplied.)
In refuting Motts’ applicability, garnishee-defendant argues that a tavern’s liability is based on statute, i.e., the dramshop act, not upon active wrongdoing. While it is true that the dramshop act derogated the common-law rule of lack of liability, we cannot agree with defendant’s insistance that a tavern owner is free from any wrongdoing.
Affirmed. Costs to plaintiff.
All concurred.
d/b/a = doing business as.—Beporier.
Defendant Chahorski’s insurer, Transameriea, joined in Chahorski’s appeal. | [
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Targonski, J.
Plaintiff was employed by the defendant on .the afternoon shift. Defendant provided a parking lot for its employees. On April 30, 1969, plaintiff arrived at the parking lot early. He parked his car and began talking to some fellow employees when one of such other employees arrived and offered him a ride on his motorcycle through the company lot. Plaintiff accepted. He estimated that the motorcycle reached a speed of 45 or 50 miles per hour before colliding with an automobile which was entering the parking lot. As a result of injuries sustained in this collision, plaintiff has been unable to work.
Plaintiff made application for benefits under the Workmen’s Compensation Act. As a result of a hearing before a referee, an award was made to plaintiff for payment of medical and hospital expenses, plus compensation from date of injury and continuing until further order of the bureau. The Workmen’s Compensation Appeal Board unanimously affirmed the award of compensation by order and opinion dated February 10, 1971. Defendant, upon leave granted, appealed from such award contending that an employee, who arrives at his employer’s premises unreasonably early, and is there after injured during a deviation from Ms work-bound journey, is not entitled to workmen’s compensation benefits.
This appeal, questions the applicability of tbe Workmen’s Compensation Act to tMs injury in view of MCLA 412.1; MSA 17.151:
“An employee, wbo receives a personal injury arising out of and in tbe course of Ms employment by an employer who is at the time of such injury subject to the provisions of this act, shall be paid compensation in the manner and to the extent hereinafter provided, or in ease of Ms death resulting from such injuries such compensation shall be paid to his dependents as hereinafter defined. The term ‘time of injury’ or ‘date of injury’ as used in this act shall in the case of a disease or in the case of an injury not attributable to a single event be the last day of work in the employment in which the employee was last subjected to the conditions resulting in disability or death.
“Every employee going to or from his work while on the premises where his work is to be performed, and within a reasonable time before and after his working hours, shall be presumed to be in the course of his employment.”
The period of time between plaintiff’s arrival at work and the start of his shift was unreasonably long according to the defendant’s contention. Defendant further contends that plaintiff’s ride on a co-worker’s motorcycle through defendant’s parking lot constituted a deviation sufficient to take the plaintiff out of the course of his employment. Our analysis of these two issues follows.
We must note, before embarking upon a review of the problem involved herein, that this Court’s review is limited:
“Review by an appellate court of a factual determination made by the Workmen’s Compensation Appeal Board is limited to any inquiry whether there is any evidence whatever to support the determination of the appeal board. Clark v Apex Foundry, Inc, supra; Const. 1963, art 6, § 28.” Williams v Chrysler Corp, 29 Mich App 398, 401-402 (1971).
The appeal board, in its opinion on the question of whether plaintiff was on the parking lot at a reasonable time before his scheduled working hours, held as follows:
“The record establishes that plaintiff had arrived at the parking lot sufficiently early but I do not find that to be of particular significance. Would the employer expect the employee to arrive late or cut the amount of arrival so fine that all employees would arrive at precisely the same moment? Thus, there must exist some individual exercise of judgment in permitting employees to enter the parking lot and plant prior to the start of each shift.”
While the appeal board did not specifically state that plaintiff’s arrival was within a reasonable time before working hours, it can certainly be inferred from the above paragraph that the board did find, as fact, that the arrival of plaintiff was within reasonable bounds.
Even though there exists a difference of opinion between the two parties here as to the actual time of plaintiff’s arrival at the parking lot, there was sufficient testimony elicited at the hearing to substantiate the appeal board’s determination .that plaintiff did arrive within a reasonable time. Plaintiff has contended throughout these proceedings that he arrived in the parking lot at approximately 4:15 p.m. Defendant has argued that the time of plaintiff’s arrival was not 4:15 p.m., but at sometime prior to that time, conceivably before 4 p.m. Plaintiff was ' to begin his afternoon shift at 4:42 p.m. Plaintiff gave testimony that it took him approximately three minutes to walk from the parking lot to his work station, and that if he had arrived at the parking lot at 4:30 p.m. he could have been at his station on time.
It was also brought out that plaintiff had 'been on the afternoon shift for a period of four months, and that he had to be in the lot at 4:15 p.m. the day of the accident because he did not leave the house until 4 p.m. when his friend was driving, and his friend was driving that week.
Finally, the only other evidence introduced bearing on the time of the accident was a medical or injury report which was prepared at the Buick Hospital at the time the accident occurred. On this report, the hour of the accident has been filled in to read 4:15 p.m. From the testimony, it appears plaintiff must have arrived in the parking lot approximately 22-32 minutes before he was scheduled to begin work.
The appeal board’s reasoning that defendant would not wish all of its employees to arrive at precisely the same time, and therefore there must exist some individual exercise of judgment, seems sound. While we do not know why plaintiff chose to arrive at the parking lot at the time he did, this is not inconsistent with the patterns that he had developed over the previous four months of his employment on the afternoon shift. Also, our Supreme Court has held that a 25-minute period is within the statutory reasonable time. Ladner v Vander Band, 376 Mich 321 (1965). Thus, we find that there was evidence presented before the appeal board to support its de termination that plaintiff had arrived within a reasonable time before working hours.
Having determined that the accident occurred within a reasonable time before the working hours, we are next faced with the problem whether the accident can be said to have arisen out of, and in the course of, the plaintiff’s employment. A review of some of the leading cases which have been decided during the past few years, and which have dealt with similar questions, will aid in resolving this issue. One of the first of these cases is Dyer v Sears, Roebuck & Co, 350 Mich 92 (1957). In Dyer, the plaintiff was on her lunch hour and had eaten lunch on the employer’s premises. After consuming her lunch, she started to leave the employer’s premises to do a personal errand and while still on the premises she fell, injuring herself. In reviewing the compensation award, the Court found that the plaintiff’s injury arose out of and in the course of her employment. The same result was achieved in Freiborg v Chrysler Corp, 350 Mich 104 (1957). There, the employer owned a parking lot 200 yards from the entrance to its plant. To get a parking place, plaintiff had to arrive early, and so arrived 45 minutes before work began. While walking to the entrance of the plant, plaintiff was struck by an auto driven by a fellow employee. The Court held that going to and from work, while on the employer’s premises, is an incident of employment, as is the parking of an automobile on the employer’s lot.
In Crilly v Ballou, 353 Mich 303 (1958), two teenaged boys were employed by a contractor who did roofing and siding work. From time to time the boys would throw shingles and nails at one another in youthful exuberance until on one occasion plaintiff lost an eye as a result of this behavior. In holding that the injury arose out of and in the course of employment, the Court said, pp 325-326:
“But what was hired, a boy or a robot? The answer is simple and it points to one solution: The employer hired a human being, with all his reactions and his imperfections. Going to the job does not sanctify him. At home or at work, give a man a curse and he will anger, give a teen-age boy an apple core and he will throw it. The workman ‘brings to his work,’ as we said, dissenting in Salmon v Bagley Laundry Company, 344 Mich 471, 487 [1955], ‘all of his human characteristics, his frailties as well as his virtues. We cannot, either actually or legally, make the precise excisions of the surgeon. We cannot remove from him, and put to work for his employer, only his strength. His strength goes hand in hand with his temper. It is impossible for us to employ only the grace and charm of the female worker. We hire as well her lively curiosity. We collect these people by the hundreds, even thousands, and we put them to work, sometimes amid noise and vibration, sometimes in smoke and steam. They get tired. They get hungry. They get thirsty. They have to go to the toilet. The day wears on and tempers grow short. Relief is sought in horseplay. Trips to the water cooler and coffee urn grow in number and duration. This is the course of employment. “Course of employment” is not a sterile form of words. It is descriptive of life in the industrial age. These human deviations from the course of the automation do not suspend the employer-employee relationship. They are not departures from employment, but the very substance of it. They are the inevitable concomitants of the working relationship and conditions which produce the product. Its costs must reflect the fatigue, the irritations, and sometimes the blood that went into it. It is here that we find the explanation for the horseplay cases, the curiosity cases, and the assault cases.’ ”
The employee in Lasiewicki v Tusco Products Co, 372 Mich 125 (1963), left the building of her employer on her noon hour for the purpose of placing a cardboard on the windshield of her car to protect it from ice. She then decided to go to the food center, lying east of the employer’s building, for an apple. While walking towards the food center, she slipped and fell. Note, this injury occurred while the employee was on her lunch hour and while she was going next door for an apple. The Court found that the injury arose out of and in the course of employment. This same result was reflected in Ladner v Vander Band, supra, and in Simerka v Pridemore, 380 Mich 250 (1968). The plaintiff in Ladner was struck by an auto driven by a co-employee, while both were on the parking lot furnished for the use of the employees by their common employer, five minutes after plaintiff left work and twenty-five minutes before the co-employee was scheduled to commence work. In Simerka the plaintiff was also struck by an automobile driven by a co-employee while both were on the parking lot controlled by their common employer.
This issue was most recently decided in Fidelity & Casualty Co of New York v DeShone, 384 Mich 686 (1971). There, the employee was injured while standing alongside his place of employment waiting for a fellow employee to open the store. The fellow employee had been given keys to the marketplace by the owner and was to open the store so that the employees could enter. Upon arriving at the store in the employer’s car on the occasion in question, the fellow employee borrowed a third employee’s car keys to see if they would fit the employer’s delivery car. When the fellow employee tried this other key in the ignition of the employer’s car, the car lurched forward and pinned the employee against the store building. As in the previous decisions, the Court held that the injury arose out of and in the course of his employment. The Court said, p 692 :
“The fact that the defendant’s act of trying someone else’s keys in his [the employer’s] automobile did not fulfill any purpose of his employer does not affect his status. To be in the course of employment, employees are not required to do only those acts that are part of their assigned work.”
- Reviewing the facts in the instant case in light of the judicial interpretations in the previous cases cited hereinabove, we find that the plaintiff’s injury arose out of and in the course of his employment even-though the injury was occasioned by a non-work-related' motorcycle ride about the employer’s parking lot prior to actually reporting at his work station, an incident not dissimilar to those in the prior cases cited, particularly Crilly v Ballou, supra, and Fidelity & Casualty Co of New York v DeShone, supra. The injury here was not the result of intentional and wilful misconduct which is. excluded from compensation by the act itself, MCLA 412.2; MSA 17.152 ; it arose from the acts of the employees on the employer’s premises while waiting, within a reasonable time, for their work shift to begin. As the Court pointed out in Crilly v Ballou, supra, man is not a robot, and it must be realized that he has many imperfections. This finding is fully in accord with the rule of law announced in Whetro v Awkerman, 383 Mich 235, 242-243 (1970), in which the Court stated:
“We hold that the law in Michigan .today no longer requires the establishment of a proximately casual connection between the employment and the injury to entitle a claimant to compensation. * * * They [cases] have brought the law in Michigan to the point where it can be said today that if the employment is the occasion of the injury, even though not the proximate cause, compensation should be paid.”
Thus, upon the facts we hold that the plaintiffs injury falls within MCLA 412.2; MSA 17.152, and the compensation awarded is hereby affirmed.
Bronson, J., concurred.
Danhof, J., concurred in the result.
This statute has been repealed and has been replaced by MCLA 418.301; MSA 17.237(301).
7 Mich App 684 (1967).
This statute has been repealed and replaced by MCLA 418.305; MSA 17.237(305).
This rule of law applies only to Whetro, and all claims for compensation arising after March 12, 1970.
Supra, note 1. | [
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J. H. Gillis, J.
Defendant was convicted by a jury of armed robbery, MCLA 750.529; MSA 28.797, and sentenced to serve 7-1/2 to 20 years in prison. He now brings this delayed appeal.
On September 12, 1967, a man entered a Detroit branch office of Associate Finance Company, walked up to a teller’s window serviced by one Cecilia (Des-Marais) Hill, gave her a paper bag, and demanded money. Mrs. Gayle (Fortner) Stefanski, the cashier at a neighboring window, stated that she saw her cohort hand a paper bag over the counter to the defendant. The manager of the office, having also observed the transaction, gave chase unsuccessfully. Keith Benning, another witness for the prosecution, testified to the following: On September 12,1967, he was sitting in a truck which was parked near the finance company when a 1966 shiny red Ford Galaxie 500 pulled up in front of him and stopped; leaving the motor running, the driver got out, kicked the tire, and got back in, whereupon another man ran out of the alley, jumped into the car, and they sped off; he did not see the running man’s face; however, he did notice that the rear license plate was hanging from a piece of wire; he noted the license number of the car. Joseph Sweeney, of the Detroit Police Department, stated that he had received a radio description of the car allegedly involved in the robbery and recalled having seen such a car in his patrol area. The day after the robbery he spotted the car, and arrested the driver, who is the defendant in this case. The car was seized by the police.
The same day the defendant was arrested, Mrs. Hill, Mr. Benning, and the manager of the finance company came down to the police station for the purpose of attempting to identify the accused at a lineup. The lineups were conducted separately with defendant being represented by counsel at each. The results of the showups were as follows: Both the manager and Mrs. Hill were unable to identify the defendant and, in fact, made incorrect identifications ; Mr. Benning failed to make any identification. However, Mr. Benning, prior to the showup, did identify the car in custody as the same one he had observed the day of the robbery, while Mrs. Hill subsequently identified the defendant at the preliminary examination and then proceeded to make an in-court identification at trial.
On September 14, 1967 (the morning following the unsuccessful lineup identifications), defendant was released from custody though his car was retained by the police. Subsequently, Mrs. Stefanski identified the defendant from a group of five or six photographs shown to her by the police without defendant’s counsel being present. Responding to a message left at his home by police, defendant voluntarily returned to the police station on September 18, 1967, to get his car. He was then held at the station and placed in a lineup where he was identi fied by Mrs. Stefanski, and rearrested. Defendant was represented by counsel at this lineup. Mrs. Stefanski subsequently made an in-eourt identification of defendant.
Three issues are raised on appeal, only one of which merits discussion. Defendant questions, for the first time on appeal (no objection being made before or during trial), the propriety of the pretrial photographic identification; specifically defendant’s failure to be represented by counsel during said proceeding. At the outset it must be noted that counsel’s failure to object at trial to a pretrial identification procedure does not preclude appellate review of an alleged violation of a constitutional right. People v Schumacher, 29 Mich App 594 (1971); People v Hartwick, 8 Mich App 193 (1967). Addressing ourselves to the question of an accused’s right to counsel during a pretrial photographic identification, we find the problem not an entirely foreign one to this Court. In 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 582 (1971 Cum Supp), p 45, it is stated:
“The constitutional right of the defendant to the presence of counsel at all critical stages of the pretrial proceedings includes a right to counsel at the ‘identification parade’ or lineup and at photographic identification.”
In People v Rowell, 14 Mich App 190, 198 (1968), one of the judges in his concurring opinion said:
“The photographic identification stage is as critical as the lineup stage, perhaps more so. The danger of misidentification at the photographic identification stage is as great, perhaps greater. Just as the facts and circumstances of a lineup identification cannot be readily reconstructed at trial (United States v Wade, 388 US 218, 230-232; 87 S Ct 1926, 1934-1935; 18 L Ed 2d 1149, 1159-1160 [1967]; and Gilbert v California, 388 US 263; 87 S Ct 1951; 18 L Ed 2d 1178 [1967]), so too the facts and circumstances of a photographic identification preceding the lineup cannot later be readily reconstructed.”
Again, this Court in a footnote to People v Robert Thomas, 36 Mich App 190, 193 (1971), cited United States v Zeiler, 427 F2d 1305, 1307 (CA 3, 1970), as holding “that the rule of the Wade case [guaranteeing the right of counsel at a lineup] applies t¡o pretrial photographic identifications of an accused who is in custody”.
In light of the preceding authority, we hold that an accused being held in custody is entitled to be represented by counsel at any photographic identification proceeding. However, when the accused is not in custody a different situation is presented. The above-cited decisions, which have afforded a defendant the right to counsel at such a proceeding, have limited this right to situations where the accused is in custody at the time. There is good reason for the distinction. Initial identification by photograph has been widely and effectively used in law enforcement. The display of photographs has proven to be a valuable tool in apprehending offenders while at the same time “sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of pho tographs”. Simmons v United States, 390 US 377; 88 S Ct 967; 19 L Ed 2d 1247 (1968). - Properly conducted precustody photographic identifications are both necessary and desirable and should not be discouraged.
However, just as our Court has recognized situations under the concept of “custodial interrogations” when an accused is entitled to his Miranda warnings though not technically under arrest, likewise, we cannot exclude the possibility that under unusual circumstances a suspect may have a right to counsel during a pretrial photographic identification though at the time he is not in custody. In People v Adams, 19 Mich App 131 (1969), the Court, in indicating that the pretrial photographic identification stage is as critical as the lineup stage, goes on to suggest that one upon whom an investigation has focused is entitled to be represented by counsel at the time photographs are exhibited. Again, our Court in People v Hutton, 21 Mich App 312 (1970), in discussing the dividing line between those pretrial identifications which do and do not require the presence of counsel, expressed its agreement with the following views of Judge Friendly in United States v Davis, 399 F2d 948, 952 (CA 2,1968):
“A clue to the dividing line may be furnished by the Court’s repeated use of the term ‘accused’ and its reference in Wade, 388 US at p 225; 87 S Ct 1926; 18 L Ed 2d 1149, to Escobedo v Illinois, 378 US 478; 84 S Ct 1758; 12 L Ed 2d 977 (1964). We have particularly in mind the passage in that opinion, 378 US at pp 485-486; 84 S Ct at p 1762 ;12 L Ed 2d 983:
“‘[T]he investigation had ceased to be a general investigation of “an unsolved crime” * * * .’ ”
Turning to the photographic display in the present case, we are of the opinion that this was no longer an in-the-field identification. Its purpose was to build a case against the defendant by eliciting identification evidence, not to extinguish a case against an innocent bystander. The police had already arrested the defendant. He was already provided with counsel at the lineups which took place on September 13th. Though at the time of the photographic display he was not in custody, his car had been retained. The photographic identification took place shortly after the defendant was released. Though defendant was set free, the police apparently still felt he was their man. We cannot allow the defendant to be stripped of his right to counsel during the photographic display by the mere fact that he had been released immediately prior to it. For these reasons we feel constrained to hold that in this particular situation defendant was entitled to be represented by counsel at the photographic identification even though he was not in custody at the time.
Although defense counsel did not ask for an evidentiary hearing on the question of whether the lineup and in-court identification by Mrs. 'Stefanski was tainted by the alleged illegal photographic identification, we are satisfied that defendant is entitled to such a separate hearing. If the trial court determines that said lineup was tainted but the in-court identification was of independent origin, defendant’s conviction should stand affirmed. If he finds to the contrary, then a new trial is in order free of all evidence of said tainted proceedings.
Defendant’s other allegations of error have been considered and from this record, we determine there is no reversible error on the points raised.
Remanded for proceedings consistent herewith.
All concurred.
The license number that was given to the police by the witness turned out to be two digits off the actual license number of defendant’s automobile.
Mrs. Stefanski did not participate in attempting to identify the defendant in a lineup on this date.
At trial, Mrs. Hill explained her initially erroneous identification thus: “Because they all looked the same to me”. She went on to indicate that there was no question that defendant was the man.
There is conflicting testimony as to how long after defendant’s release the pretrial photographic identification took place. One officer testified it occurred on September 14th, while another indicated it was on the 14th, 15th or 16th. Mrs. Stefanski at the preliminary examination indicated that it occurred on September 18th just before she was taken to identify the defendant at a lineup. However, at trial she stated she could not recall when the photographs were shown her.
Likewise, there is conflicting testimony as to where she observed the photographs. One officer testified that he had gone out to the finance company to conduct the identification. Mrs. Stefanski at the preliminary examination indicated it took place at the police station, but was unable at trial to recall its location.
Citing as authority People v Adams, 19 Mich App 131 (1969). See also United States v Zeiler, 427 F2d 1305 (CA 3, 1970); United States v Marson, 408 F2d 644 (CA 4, 1968) (Winter, J., dissenting), cert den, 393 US 1056; 89 S Ct 695; 21 L Ed 2d 698 (1969).
It must be noted that in the per ewriam opinion of People v Wilkins, 36 Mich App 143 (1971) in which this author participated, this Court indicated that the great weight of authority holds that Wade and Gilbert v California do not apply to photographic identifications citing Allen v Rhay, 431 F2d 1160 (CA 9, 1970). Upon a reexamination of authority (as cited in this opinion), we feel constrained to depart from this view and any implications to that effect in Wilkins.
See People v Robert Thomas, 36 Mich App 190 (1971); People v Schumacher, 384 Mich 831 (1971); People v Sutton, 21 Mich App 312 (1970). | [
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