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Memorandum Opinion.
The defendant, represented by counsel, entered a plea of guilty, was sentenced and has appealed.
The trial judge complied with every constitutional, statutory and court rule requirement before accepting the plea. There was no error.
Affirmed. | [
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Quinn, P. J.
This action was submitted to the trial court for a decision on stipulated facts, stipulated issues, and briefs. Defendant bad judgment and plaintiff appeals.
The stipulated facts are:
“1. On December 3, 1963 Floren Klopfenstein, as purchaser, and A. H. Heine Implement Company, as dealer, executed a conditional sales contract covering three (3) John Deere farm tractors and a plow. Copy of this contract is attached hereto and made a part hereof as Exhibit 1. The contract was executed in Fort Wayne, Indiana, where the goods were located. The goods were delivered to Mr. Klopfenstein’s farm at or near Paulding, Ohio by the dealer. Said conditional sales contract was assigned to plaintiff, Central National Bank on or about the date of execution. Neither the A. H. Heine Implement Company nor plaintiff, Central National Bank, knew or consented to the later removal of said equipment from Ohio to Michigan. The conditional sales contract was never the subject of recording or filing in any state.
“2. On or about December 10, 1964 a security agreement (retail installment contract) was entered into between the same Floren Klopfenstein as debt- or-buyer and A. H. Heine Implement Company as secured party-seller. This contract covered seven items of earth moving equipment including a G-alion road grader. A copy of said security agreement (retail installment contract) is attached hereto and made a part hereof as Exhibit 2. Said contract was assigned to plaintiff, Central National Bank, on the same day and plaintiff caused financing statements to be filed with the Hillsdale County, Michigan Register of Deeds on January 7,1965, the Paulding County, Ohio Register of Deeds on December 14,1964 and with the Steuben County, Indiana Recorder on December 14, 1964. Copies of these financing statements are attached hereto and made a part hereof as Exhibits 3, 4 and 5 respectively. The earth moving equipment, including the G-alion road grader were delivered by A. H. Heine Implement Company to Floren Klopfenstein at Lake Diane, Woodbridge Road, Hillsdale County, Michigan.
“3. On September 12, 1967 defendant, Wonderland Realty Corporation, as a judgment creditor of Floren Klopfenstein, (Ingham County Circuit Civil Action No. 6400-C), executed and levied against two of the John Deere farm tractors sold under the conditional sales contract described above, and on the Galion road grader sold under the security agreement (retail installment contract) described above, which were then in the possession of Klopfenstein in Hillsdale County, Michigan.
“4. Plaintiff, Central National Bank, brought this action to prevent sale of the tractors and road grader and to secure determination of the respective priorities of the parties’ interest in the equipment. By agreement of the parties, the tractors were sold for Five thousand seven hundred ($5,700) dollars and the proceeds thereof substituted for said tractors in this action; and the road grader was sold for One thousand five hundred ($1,500) dollars and the proceeds thereof substituted therefor in this action. The agreement of the parties with respect to sale and substitution and the terms of judgment to be rendered herein is attached hereto and made a part hereof as Exhibit 6.”
(Exhibits 1 through 6 referred to in the stipulated facts are not included in this opinion because their terms do not affect the result.)
The stipulated issues are:
“1. Does plaintiff’s interest in the two tractors, under its conditional sale contract, take priority over defendant Wonderland’s interest under its levy of execution?
“2. Does plaintiff’s interest in the road grader, under its security agreement (retail installment contract) take priority over defendant Wonderland’s interest under its levy of execution?”
The trial court found that plaintiff had not perfected its security interest either in the conditional sale contract or the retail installment contract under Michigan law and held for defendant.
With respect to the Galion road grader we reverse. Defendant’s right to priority as a lien creditor was dependent on its lack of knowledge of the security interest of plaintiff, MCLA 440.9301(b); MSA 19.9301(b). In paragraph 6 of its answer, defendant admits knowledge of plaintiff’s claim to the road grader at the time defendant levied.
With respect to the two farm tractors, we affirm but not for the reason given by the trial court.
There is nothing in this record to indicate that debtor Klopfenstein’s. chief place of business was anywhere other than Paulding, Ohio. MCLA 440. 9103(2); MSA 19.9103(2) provides:
“If the chief place of business of a debtor is in this state, this article governs the validity and perfection of a security interest and the possibility and effect of proper filing with regard to general intangibles or with regard to goods of a type which are normally used in more than one jurisdiction (such as automotive equipment, rolling stock, airplanes, road building equipment, commercial harvesting equipment, construction machinery and the like) if such goods are classified as equipment or classified as inventory by reason of their being leased by the debtor to others. Otherwise, the law (including the conflict of laws rules) of the jurisdiction where such chief place of business is located shall govern. If the chief place of business is located in a jurisdiction which does not provide for perfection of the security interest by filing or recording in that jurisdiction, then the security interest may be perfected by filing in this state.”
We find the foregoing section of the statute controlling on this record, not only from its applicable language but also'because the practicalities of the situation convince us that the Legislature so intended. Tractors come within the statutory definition of equipment, MCLA 440.9109(2); MSA 19-.9109(2). Tractors are equipment normally used in more than one jurisdiction. The mobility of such equipment requires that perfection of the security interest at one location will protect the secured party regardless of the debtor’s future actions. The statute sensibly places that location at the debtor’s chief place of business. In this instance that is Paulding, Ohio.
By the stipulated facts, the conditional sales contract covering the tractors was never filed anywhere. Ohio Revised Code, § 1309.21, requires filing.
Reversed in part and affirmed in part. Neither party having prevailed, no costs are awarded.
All concurred. | [
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Levin, P. J.
The defendant, Gregory L. Thomas, was convicted by a jury of the offense of larceny from the person. MCLA 750.357; MSA 28.589. The defense was alibi.
The trial judge charged the jury that there were three possible verdicts: (1) guilty of larceny from the person, (2) guilty of the lesser offense of sjbtnple larceny, and (3) not guilty. He refused to charge that the defendant could be convicted of the lesser offenses of attempt to commit larceny from the person or attempt to commit simple larceny.
The defendant’s reliance on People v Lemmons, 384 Mich 1 (1970), is misplaced. Lemmons is an exception to the general rule that it is not error to fail to charge on included offenses in a case where the defendant has not requested such a charge. It has been said that the exception recognized in Lemmons is that where a defendant is entitled to a charge on a lesser offense it is error affirmatively to exclude the lesser offense from the jury’s consideration even if there is no request to charge.
Here we are not confronted with the question of whether in the particular circumstances presented instructional error should be recognized on appeal even though there was a failure to request a charge ; Thomas’s lawyer requested a charge on lesser offenses and the request was refused. We are, rather, confronted with the antecedent question of whether Thomas was entitled to such a charge at all.
The rule is that entitlement to a charge on a lesser included offense largely turns on whether, on view of the evidence favorable to the defendant, there is evidence which would justify the jury in concluding that the greater offense was not committed and a lesser included offense was committed.
The elements of attempted larceny are the felonious intent to commit a larceny and an overt act going beyond mere preparation towards its commission. In this case all the evidence showed that there was a completed larceny. There was no evidence from which the jury could reasonably have concluded that the defendant may not have gone beyond the attempt-stage. The judge did not err in refusing to give the jury the option of convicting the defendant of an attempt to commit a larceny.
The victim was an invalid who was selling newspapers from a three-wheel bicycle. He testified that he was accosted by the. defendant who reached into the victim’s pocket and took all his money. Although the victim conceded that some of the money may have dropped to the ground that does not negate the evidence showing that there was an asportation. The concession that some of the money might not have reached the defendant’s pocket does not tend to show that the completed offense of larceny from the person may not have been committed.
An eyewitness observed the assault and the defendant reaching into the victim’s pocket. The witness conceded that he had no way of knowing what, if anything, the defendant took from the victim’s pocket. Merely because all the witnesses are unable to establish all the elements of the crime does not mean that there is uncertainty whether the only evidence establishes a completed offense.
In this ease there is no inconsistency in the testimony on the factual issue of whether the greater or a lesser offense was committed. Nor is this a case where it would have been reasonable to infer from the evidence — disputed or undisputed — that either the greater or the lesser offense was committed. In this case the evidence is all consistent in establishing that only the greater offense was committed; it would not have been reasonable to infer from the evidence that a lesser attempted offense was committed. See People v Tyrone Williams, 38 Mich App 146 (1972).
Implicit in the long-established rule, recently reiterated by the Michigan Supreme Court, that it is not error to refuse to charge on a lesser offense which is not supported by the evidence, is the Court’s rejection of the contention advanced by Thomas that MCLA 768.32; MSA 28.1055 entitles every defendant in every case to a charge on “an attempt to. commit such offense” either because the statute so states or because “every completed offense must include a successful attempt to commit the crime” or because a jury may believe such portion of a witness’s testimony as it chooses to believe and discard the balance. It is obvious, in the light of the present _!_\__ case law concerning entitlement to a charge on lesser offenses, that Thomas’s argument has not prevailed in the councils of the Supreme Court. If the law is to be changed the Supreme Court must change it.
Affirmed.
All concurred.
People v Membres, 34 Mich App 224, 232-233 (1971).
See People v Loncar, 4 Mich App 281, 289 (1966); People v Trilck, 25 Mich App 634 (1970); People v Membres, supra, p 228; People v Hearn, 354 Mich 468 (1958).
Similarly, see Model Penal Code (Proposed Official Draft, May 4, 1962), § 1.07(5), pp 12-13.
As appears from the majority and dissenting opinions in Sparf v United States, 156 US 51; 15 S Ct 273; 39 L Ed 343 (1895), and Berra v United States, 351 US 131; 76 S Ct 685; 100 L Ed 1013 (1956), at stake is nothing less than such fundamental matters as the prosecutor’s charging discretion, the court’s power to control the jury, and the jury’s power to acquit the guilty in the face of the evidence. See Van Dyke, The Jury as a Political Institution, 3 The Center Magazine 17 (Mar-Apr, 1970). See, also, Sansone v United States, 380 US 343, 349; 85 S Ct 1004; 13 L Ed 2d 882 (1965).
People v Bowen, 10 Mich App 1, 7 (1968).
People v Loncar, supra, fn 2.
See People v Royce Alexander, 17 Mich App 30, 32 (1969), where we said that “any movement of the goods is sufficient to constitute an asportation”, and held that a movement of the goods by the victim under the direction of the defendant should be imputed to the defendant so as to supply the necessary asportation.
Contrast People v Jessie Williams, 14 Mich App 186, 188 (1968), where there were other participants in an affray besides the defendant and it was not clear whether the defendant was part of the criminal concert of action charged in the information — armed robbery — or merely an opportunist who seized some of the fruits and, therefore, was guilty only of the lesser offense of larceny from a person.
See, e.g., People v Jessie Williams, supra, p 188; People v Blevins, 30 Mich App 72, 75 (1971); People v Brooks, 37 Mich App 403 (1971). In Brooks the defendant was convicted of breaking and entering with intent to commit a larceny. A confederate testified that the men involved in committing the charged offense thought the building they broke into was vacant and they just wanted to “explore” it. Later he testified that they wanted to obtain some money. We reversed because the judge refused to charge.on breaking and entering without permission. We observed:
“Since the finding of intent to commit a larceny was largely based upon [the confederate’s] testimony and since his testimony was inconsistent in regard to that intent, the court should have charged the jury as to the lesser included offense of breaking and entering without permission, MCLA 750.115; MSA 28.310.
“It is error to fail to instruct on a legally possible included offense if supported by competent testimony.
“ ‘A party is entitled to have specific charges upon the law applicable to each of the various hypotheses or combinations of facts which the jury, from the evidence, might legitimately find, and which have not been covered by other instructions.’ People v Parsons (syllabus), 105 Mich 177 (1895); People v Hoefle, 276 Mich 428, 431 (1936).”
In Sansone v United States, supra, pp 349-350, the United States Supreme Court said:
“[A] lesser-offense charge is not proper where, on the evidence presented, the factual issues to be resolved by the jury are the same as-to both the lesser and greater offenses. [Citations omitted.] In other words, the lesser offense must be included within but not, on the facts of the case, be completely encompassed by the greater. A lesser-ineluded offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-ineluded offense.”
See, e.g., People v Simpson, 5 Mich App 479, 486 (1966); People v Norman, 14 Mich App 673, 675-676 (1968); People v John Willie Williams, 26 Mich App 218 (1970). In Williams we reversed a conviction of second-degree murder because the jury was not instructed on the lesser included offense of manslaughter. Even though the defendant claimed innocence and failed to claim mitigation, the jury could have reasonably inferred from the circumstantial evidence adduced by the people that the defendant was the killer but that the crime committed was manslaughter, not murder.
People v Phillips, 385 Mich 30, 36 (1971).
People v Membres, supra, p 233 (Lesinski, C. J., dissenting).
If the belief-in-part/disbelief-in-part rationale applied in deciding entitlement to a charge on lesser offenses, without regard to whether the people’s witnesses or their testimony is impeached, the judge would be required to charge on lesser included offenses in every case; e.g., on attempt in every case, on unarmed robbery in every armed robbery case, and perhaps even on involuntary manslaughter (gross or criminal negligence) in every felony murder case. See United States v Markis, 352 F2d 860, 867 (CA 2, 1965), where the Court said:
“The mere fact that the jury was still free to disbelieve this portion of the agent’s testimony does not elevate the issue to a truly ‘disputed’ one; in the language of the Model Penal Code § 1.07 (5) (1962), it does not provide ‘a rationale basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.’ Model Penal Code § 1.08 comment, at 42-43 (Tent. Draft No 5, 1956). This hits the essential point. The lesser-ineluded offense charge is not required simply because the jury could exercise its power of acquitting on the greater charge for no reason at all ‘in the teeth of both law and facts,’ Horning v District of Columbia, 254 US 135, 138; 41 S Ct 53-54; 65 L Ed 185 (1920); there must be a rational basis for its doing so. Precisely this, we think, is the distinction between Sparf v United States, 156 US 51, 63-64; 15 S Ct 273; 39 L Ed 343 (1895), and Stevenson v United States, 162 US 313, 315, 322-323; 16 S Ct 839; 40 L Ed 980 (1896), both cited by the Court with apparent approval in the recent cases of Berra [v United States, 351 US 131; 76 S Ct 685; 100 L Ed 1013 (1956)] and Sansone [v United States, 380 US 343; 85 S Ct 1004; 13 LEd 2d 882 (1965)].”
Where a witness’s testimony on an essential element of the greater offense is the only evidence of that element and his testimony concerning that element is impeached by showing that he made a statement inconsistent with his testimony or by showing that he did not have the capacity to obsejve the matter related, or the like, the defendant would be entitled to a charge on a lesser included offense not involving that element. Quaere whether the defendant would be entitled to sueh a charge if the witness’s testimony is not impeached but the witness is generally impeached by evidence, say, that he is untrustworthy, interested in the outcome, biased, or the like?
See People v Membres, supra, p 231. | [
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Memorandum Opinion.
Defendant pleaded guilty to attempted larceny in a building and he appeals. A motion to affirm has been filed by the people.
Upon an 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.
Motion to affirm is granted. | [
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Per Curiam.
The defendant was arrested and indicted on two counts of murder, the first count charging him with first-degree murder, MCLA 750.316, MSA 28.548, and the second count charging him with second-degree murder, MCLA 750.317, MSA 28.549. On November 29, 1965, the defendant entered a plea of guilty to the charge of second-degree murder and the charge of first-degree murder was dropped. The defendant was thereafter sentenced to a term of natural life in prison.
After sentencing, the defendant made several motions to withdraw his guilty plea and for a new trial. A three-day hearing was held, resulting in a denial of defendant’s motions. Defendant now appeals, alleging that his guilty plea was a result of an unfulfilled promise of leniency, and that the plea was not voluntarily made but was the result of coercive police tactics.
It is established law, that when first made after sentencing, a motion to withdraw a guilty plea addresses itself to the sound discretion of the trial court, People v Vasquez, 303 Mich 340 (1942); People v Walls, 3 Mich App 279 (1966), and the decision of the trial court will not be disturbed unless there is a clear abuse of discretion resulting in a miscarriage of justice. People v Collins, 380 Mich 131 (1968); People v Winegar, 380 Mich 719 (1968).
At the same time, the Supreme Court has held that, to be successful on a motion to withdraw a guilty plea because it was not voluntarily made, a defendant must convince the trial court by a preponderance of credible evidence “that the plea was the product of fraud, duress, or coercion, or so devoid of understanding that the defendant could hot be said to have been sui juris”. People v Taylor, 383 Mich 338, 361 (1970).
A careful review of the records in this case discloses that the trial judge went to great lengths to satisfy himself that the defendant’s original plea was given voluntarily, intelligently, and without promise of leniency. At the same time, a careful review of the evidence introduced by the defendant at the hearing on his motion discloses no abuse of discretion on the part of the trial court in denying his motion. See People v Walls, 3 Mich App 279 (1966); People v Mayfield, 16 Mich App 680 (1969); People v Williams, 20 Mich App 311 (1969); People v Fenn, 23 Mich App 560 (1970); People v Inosencio, 35 Mich App 236 (1971).
Affirmed. | [
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Memorandum Opinion.
William Hubert Harrison appeals his conviction by jury on September 16, 1970, of armed robbery. MCLA 750.529; MSA 28.797.
Our examination of the record and briefs discloses no prejudicial error depriving appellant of any substantial right.
Affirmed. | [
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Memorandum Opinion.
On appeal, plaintiff contends that the “physical contact” provision of her automobile insurance policy, which requires that there must be physical contact with an unidentified vehicle before the insurer becomes liable under said provision, is void as against public policy. Plaintiff relies on MCLA 257.1112; MSA 9.2812 in support of her contention.
In 1968, the Legislature amended MCLA 257.1112; MSA 9.2812; its amended form states that as a condition precedent to recovery from the Motor Vehicle Accident Claims Fund in a case involving injuries caused by an unidentified motorist, the plaintiff must establish that there was “physical contact by the unidentified vehicle with the plaintiff or with a vehicle occupied by the plaintiff”. MCLA 257.1112; MSA 9.2812. The action of the Legislature in adopting this provision clearly establishes that such provisions are not contrary to the public policy of this state.
Furthermore, the question raised herein by plaintiff was considered by this Court in Citizens Mutual Insurance Co v Jenks, 37 Mich App 378 (1971), and plaintiff’s contentions were rejected there. That ease controls and the judgment of the trial court is affirmed.
Costs to defendant. | [
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Levin, J.
In this case we revisit the holding of Wyoming Twp v Herweyer, and consider whether a municipality constitutionally may provide that mobile homes are to be sited only in mobile-home parks and exclude all mobile homes from other residential zones.
Robinson Township commenced this action against Donald and Merle Knoll, seeking removal of a mobile home from their 80-acre parcel of land.
Count I of the complaint alleged that the use of the mobile home was contrary to § 307.1 of the township’s zoning ordinance, which provides that mobile homes may be located only in mobile-home parks, and to § 1302.1 of the ordinance, which requires that a building permit be obtained before the erection of a building or structure on any property in the township. Count II alleged that because of violation of the same sections of the ordinance, the mobile home was a nuisance per se.
The answer raised affirmative defenses based on the unconstitutionality of the ordinance in that it arbitrarily and capriciously prohibits a proper land use, and is overbroad, failing to establish clear standards to be observed by property owners and citizens of the township.
Trial was had on stipulated facts, including: the home had been placed on the parcel; the parcel was not a mobile-home park; no building permit had been obtained; and the Knolls had dug a well, obtained a septic permit, applied for power from Consumers Power Company, cleared trees for a roadway and erected a rail fence around the site. No claim was made that the dwelling was not a mobile home within the meaning of the ordinance.
The trial judge, citing Wyoming Twp v Herweyer, held that "unless and until such decision is reversed”, the provision that mobile homes are permitted only in mobile-home parks was valid, and accordingly ordered removal within 30 days.
The Court of Appeals reasoned that because 1) there was no existing mobile-home park in the community, and — given the state of construction on a newly approved mobile-home park — "the use of land for mobile homes is neither imminent nor a factual certainty” and 2) "[a]s a matter of law”, "a single mobile home [is not] a nuisance per se or detrimental to public health, safety, morals or general welfare, either”, the township had totally excluded a legitimate use from the entire township. The Court found no justification for this total exclusion, and held the ordinance unconstitutional. The Court found its conclusion reinforced in that the Knolls’ land was so zoned that it could be licensed as a mobile-home park, commenting that "if the existence of such a park on that site poses no threat to 'public health, safety, morals or general welfare’, it is difficult to perceive how the existence of one mobile home could do so”.
We agree with the Court of Appeals that the ordinance is unconstitutional, but on other grounds.
We hold:
(1) The per se exclusion of mobile homes from all areas not designated as mobile-home parks has no reasonable basis under the police power, and is therefore unconstitutional.
The reasoning on which the rule of Wyoming Twp v Herweyer was based is no longer valid in light of improvements in the size, quality and appearance of mobile homes, and that decision and cases to the same effect are overruled as to housing that is not a "trailer”.
We add, however, that a municipality need not permit all mobile homes, regardless of size, appearance, quality of manufacture or manner of on-site installation, to be placed in all residential neighborhoods. A mobile home may be excluded if it fails to satisfy reasonable standards designed to assure favorable comparison of mobile homes with site-built housing which would be permitted on the site, and not merely because it is a mobile home.
The Robinson Township ordinance embodies a per se rule segregating mobile homes from residential zones that are not mobile-home parks, and is therefore unconstitutional.
(2) The complaint also alleged violation of the provision of the zoning ordinance relating to building permits. A building permit could not have issued because of the per se rule confining mobile homes to mobile-home parks. It necessarily would have been futile for the Knolls to apply for one. For this reason, the township is entitled to no relief based on the Knolls’ failure to apply for a building permit.
(3) We intimate no opinion whether building code provisions may now be invoked against the Knolls, leaving that question for consideration by the circuit court should the township seek further relief on that basis.
We vacate the judgment of the Court of Appeals, and remand to the circuit court for further proceedings not inconsistent with this opinion.
Municipalities throughout the state have assumed the continuing validity of the rule of Wyoming Twp v Herweyer in drafting their ordinances. We reserve the question whether our decision overruling that opinion as applied to housing other than "trailers” should be applied retroactively in other pending cases or to other ordinances and, if so, whether retroactivity should be conditioned upon compliance with reasonable standards designed to assure favorable comparison of the mobile home in question with site-built housing which would be permitted on the site.
I
In Kropf v Sterling Heights this Court said that "[a] plaintiff-citizen may be denied substantive due process by the city or municipality by the enactment of legislation, in this case a zoning ordinance, which has, in the final analysis, no reasonable basis for its very existence”.
A "reasonable basis” must be grounded in the police power, which this Court has defined as including "protection of the safety, health, morals, prosperity, comfort, convenience and welfare of the public, or any substantial part of the public”.
The township’s argument based on the land planning principle that like uses should be grouped and incompatible uses kept separate begs the question raised by the appeal: do mobile homes differ from other single-family dwellings in any constitutionally cognizable manner which would justify their per se classification as a different use? If not, then the ordinance limiting mobile homes to mobile-home parks has "no reasonable basis for its very existence”.
In Kropf, we reaffirmed the principle that " '[w]hile an ordinance must stand the test of reasonableness, the presumption is in favor of its validity and courts may not invalidate ordinances unless the constitutional objections thereto are supported by competent evidence or appear on their face’ ”.
The Knolls, having failed to produce any evidence in the circuit court, can succeed only if the rule that no mobile home may be located outside a mobile-home park is invalid on its face.
We believe that it is.
II
Wyoming Twp v Herweyer, holding that a municipality may constitutionally limit trailers to trailer parks, would seem to be dispositive of this case, and was so treated by the trial judge. We conclude, however, that it does not control.
That case, decided over 30 years ago, dealt with trailers. Today, we consider the per se exclusion not of trailers, but of mobile homes — and more than the label has changed with time. The mobile home today can compare favorably with site-built housing in size, safety and attractiveness. To be sure, mobile homes inferior in many respects to site-built homes continue to be manufactured. But the assumption that all mobile homes are different from all site-built homes with respect to criteria cognizable under the police power can no longer be accepted.
A
Section 203 of the township’s zoning ordinance defines "mobile home” as "[a] movable or portable dwelling constructed to be towed on its own chassis, connected to utilities and designed without a permanent foundation for year-round living as a single-family dwelling”.
If mobile homes are to be excluded from all residential zones in Robinson Township other than mobile-home parks, it cannot be because they are "movable or portable”. Site-built homes are "movable or portable”, although they are rarely moved.
We note in this regard that § 500.2 of the township’s building code specifically provides for the issuance of moving permits to allow the relocation of one- or two-family dwellings from outside the township or from another location within the township. Any dwelling covered by § 500.2 is, by the township’s definition, movable. It would be arbitrary to discriminate against mobile homes on that basis.
Nor do the criteria "constructed to be towed on its own chassis” and "designed without a permanent foundation” identify characteristics which justify the exclusion and segregation of mobile homes.
One can agree that a community has a legitimate interest in safeguarding residents against, for example, windstorm damage, justifying a requirement that a mobile home be firmly attached to a solid foundation on the site. And a municipality may reasonably conclude that a dwelling the wheels and chassis of which are exposed is un sightly or is likely to lead to transience and should not be tolerated alongside site-built homes. These and similar considerations would justify requirements that certain on-site modifications be made as a condition to placement of a mobile home in an area not a designated mobile-home park. The ordinance governing moving permits, discussed above, employs such a mechanism.
The ordinance defining "mobile home”, however, reflects no such concerns. To say that a dwelling was "constructed to be towed on its own chassis” or "designed without a permanent foundation” speaks only to its origin and not to its present characteristics.
Just as "the reasonableness of a zoning restriction must be tested according to existing facts and conditions and not some condition which might exist in the future”, so must an ordinance restricting the placement of mobile homes be directed to the dwelling as it will exist on the land, and not, as here, to its characteristics when delivered to the site.
B
While the characteristics specified in the ordinance are not themselves a basis for the disparate treatment of mobile homes, they do serve to identify "the mobile home”. If that label implies the existence of other (but unspecified) characteristics which provide a basis for restricting mobile homes to mobile-home parks, there is a valid purpose for the ordinance.
We are unable to identify any inherent characteristics of mobile homes that justify the per se rule of the ordinance.
Amicus curiae Michigan Townships Association argues that the segregation of mobile homes is justified on aesthetic grounds.
It appears that mobile homes can be designed or modified to compare favorably in appearance to many site-built homes. There is no longer reason to presume that mobile homes will fail to live up to a community’s aesthetic standards. Reasonable requirements to assure favorable comparison with those standards, of course, can be imposed by a municipality.
Concerns based in health and safety are also illusory. A municipality, again, is free to deal with concerns of this type in a reasonable code. Standards to assure that mobile homes compare favorably to other housing in, for example, insulation, adequacy of plumbing, and size of the living space exist or can be imposed. And, as we have noted, a community may impose requirements to assure protection from windstorm damage.
Another concern that has been voiced is that mobile homes are given to transient use. The practical necessities attending the installation of a single mobile home in an area in which site-built housing is allowed, along with conditions (such as those discussed above) that a township might reasonably attach to such mobile-home use, vitiate this cause for concern. A parcel of land of sufficient size to meet community standards probably will have been purchased by the mobile-home owner. Utility lines may be installed to the site; the municipality may require that a foundation to which the home will be firmly attached be laid, and other on-site modifications may be made to bring the mobile home and the parcel on which it is located into conformity with community aesthetic standards. In light of the investment required to so install a mobile home as a single-family dwelling, it is unreasonable to assume the mobile-home dweller will stay only a short time.
The disparate treatment of mobile homes seems to be based on attitudes which once had but no longer have a basis in fact:
"Community fear of blight can be traced to the low quality of both the early trailers and their parking facilities. Economic conditions of the 'thirties, followed by wartime housing shortages and rapid relocations of the labor force, pressed many thousands of unattractive trailers into permanent use. Often these units were without running water or sanitary facilities. There were no construction standards to insure even minimum protection against fire or collapse. They were parked in areas which were usually crowded, poorly equipped, and generally unsuited to residential use. As a result, conditions in these parks seldom exceeded minimum health and sanitation standards. The specter of such parks teeming with tiny trailers made community apprehension understandable. But substantial improvements in the quality of both mobile homes and park facilities may have undermined the bases for this antipathy today. The mobile home currently produced is an attractive, completely furnished, efficiently spacious dwelling for which national construction standards have been adopted and enforced by the manufacturers’ associations.” _
Decisions from other jurisdictions, while not directly on point, support the view that per se discrimination against mobile homes can no longer be legitimized.
In holding that mobile homes intended to be used as permanent dwellings are taxable as real property, the New Jersey Supreme Court explained that "[t]he early house trailers, which originated a half century ago, have been described as makeshift contraptions 'not really fit for permanent human habitation.’ * * * That they were then viewed as personal property can have little relevance when dealing with modern mobile homes * * *. These modern homes not only have all of the facilities of conventional homes, including sewage, water, lighting, heating and air conditioning, but also are more and more being constructed to look like and be used as conventional homes”.
The Nebraska Supreme Court, holding that mobile homes cannot be taxed as motor vehicles, observed that "[t]he evidence in this case discloses that the mobile homes in question resemble in all respects a residence. * * * The evidence in this record further discloses that the interiors of these mobile homes resemble a residence in every respect, and one looking at the exhibits disclosing the interior of these mobile homes, if not advised that in fact they were mobile homes, would not be able to distinguish them from any other residence”.
The New Mexico Supreme Court recently held that the mobile home there in question was "substantially the same as a conventional one-family dwelling” and therefore "does not violate the let ter or the spirit” of a subdivision’s restrictive covenant prohibiting trailers. The description of that mobile home demonstrates that mobile homes are not inherently incapable of achieving the aesthetic and comfort standards of conventional dwellings: •
"Parker purchased two lots in the Deming Ranchettes subdivision in 1975 and 1977. He bought a double-wide mobile home and moved it on the lots. The wheels, axles, and running gear were removed and sold, and the home was placed on a concrete and slump stone foundation. The mobile home has three bedrooms, two full baths and contains 1,440 square feet of floor space. A patio, a 200 square foot porch, sidewalks, and a 672 square foot two-car garage were constructed. A water well was drilled and a septic tank was installed. Both were connected to the mobile home. A conventional style asbestos shingle roof and aluminum siding were added to the home. A garden was planted and 210 trees were obtained to be planted.
"Parker testified that he and his wife intended to reside in the home permanently. Photographs admitted into evidence showed that their home had the appearance of a conventional single-family dwelling. It compares favorably with other homes in the subdivision.”
The legislatures of various states have provided that mobile homes may be taxed as real property, and one statute prohibits ordinances which, like Robinson Township’s, discriminate against mobile homes. _
Moreover, Robinson Township’s building code allows for prefabricated housing which is assembled at the site. There can be no reasonable basis for distinguishing between mobile homes and other prefabricated dwellings. Both are "movable or portable”, and may be similar in appearance and constructed of similar materials. It is not a valid basis for distinction under the police power that one is not only prefabricated but also preassembled, and "constructed to be towed on its own chassis”.
This is not to say that a municipality must permit all mobile homes, regardless of size, appearance, quality of manufacture or manner of installation on the site, to be placed wherever site-built single-family homes have been built or are permitted to be built. Nor do we hold that a municipality may no longer provide for mobile-home parks. We hold only that a per se restriction is invalid; if a particular mobile home is excluded from areas other than mobile-home parks, it must be because it fails to satisfy standards designed to assure that the home will compare favorably with other housing that would be allowed on that site, and not merely because it is a mobile home.
We affirm the finding of the Court of Appeals that the ordinance is unconstitutional but vacate its judgment and remand to the circuit court for further proceedings not inconsistent with this opinion. No costs, a public question.
Kavanagh, Williams, and Fitzgerald, JJ., concurred with Levin, J.
Wyoming Twp v Herweyer, 321 Mich 611; 33 NW2d 93 (1948).
“Mobile Homes — Where Permitted: Mobile homes are considered as dwelling units and are not permitted as an accessory use to a permitted principal use and are permitted only in approved mobile home parks.” Robinson Township Zoning Ordinance, § 307.1.
"Application. Except as otherwise provided, it shall be unlawful to erect any new building or structure or to alter any existing building or structure at a cost of $200.00 or more until a permit therefor has been obtained from the building inspector by the owner or his duly authorized agent. Application for a permit shall be in writing and upon duplicate printed forms furnished by the building inspector. Such permits shall be non-transferable and must be obtained before any work, excavation, erection, alteration, or movement is begun. Satisfactory evidence of ownership of the premises may be required by the building inspector and shall be furnished upon request. If the application is approved, the building inspector shall so mark both copies over his signature, shall file one copy in the office of the township clerk of Robinson Township, and return the other copy to the applicant together with a construction card signed by the building inspector stating the extent of the work authorized, which card shall be attached to and remain on the premises during the progress of the work authorized.” Id., § 1302.1.
Robinson Twp r Knoll, 70 Mich App 258, 264-266; 245 NW2d 709 (1976).
Const 1963, art 1, § 17.
This case was tried on a stipulation of facts. The record shows that the mobile home placed on the Knolls’ land is 14' X 70', and that some improvements have been made. There is no indication that this mobile home is of a kind that the township could exclude. Our decision, however, is not based on a determination that this mobile home could not constitutionally be excluded.
Kropf v Sterling Heights, 391 Mich 139, 157; 215 NW2d 179 (1974).
"The power of the city to enact ordinances is not absolute. It has been given power by the State of Michigan to zone and regulate land use within its boundaries so that the inherent police powers of the state may be more effectively implemented at the local level. But the state cannot confer upon the local unit of government that which it does not have. For the state itself to legislate in a manner that affects the individual right of its citizens, the state must show that it has a sufficient interest in protecting or implementing the common good, via its police powers, that such private interests must give way to this higher interest.” Id.
Cady v Detroit, 289 Mich 499, 504-505; 286 NW 805 (1939).
Kropf v Sterling Heights, supra, p 156, quoting Northwood Properties Co v Royal Oak City Inspector, 325 Mich 419, 423; 39 NW2d 25 (1949).
See fn 6.
The section provides in part:
"Moving Permit: Any person desiring to move any one- or two-family dwelling and/or accessory building from outside of the township limits to any location within the township or from one location to another location within the township shall file a written application for a moving permit with the Township Board of Appeals. Said application shall set forth the present location of said building and/or buildings, the location of [sic] which said building or buildings are proposed to be moved within the township, the age of the building or buildings, a statement as to whether or not the building or buildings comply with the requirements of the building code and if not what improvements applicant proposes to make to bring said building or buildings in compliance with the building code. The application shall be accompanied by a site map as required by Sec. 501.1 of the Building Code and said map shall clearly indicate front, side and rear yards as required by Sec. 501.2 of the Building Code.” Robinson Township Building Code, § 500.2.
"The Board of Appeals shall make or cause to be made an investigation in regard to such application, and if it be determined that the building and/or buildings complies with and is in conformity to the Robinson Township Building Code or will be brought into conformity with said code by the applicant and that such building and/or buildings at the proposed new location will not be injurious to the contiguous property and the surrounding neighborhood, the Board of Appeals may grant a moving permit, and if the applicant is required to make any improvements or changes to bring said building or buildings into conformity with the Building Code the permit shall specify such requirements. If any improvements or alterations in the amount of $200.00 or more are required, the applicant shall apply for and secure a permit for such alterations pursuant to this ordinance before moving said building and/or buildings under the moving permit issued by the Board of Appeals.
"The foundations and all other new portions, improvements or alterations to said building or buildings shall be constructed in conformity -with the Township Building Code and the use, location of said building or buildings and yard areas shall conform to the Robinson Township Zoning Ordinance and Building Code.” Id., § 500.2.
Christine Building Co v Troy, 367 Mich 508, 516; 116 NW2d 816 (1962).
See Department of Housing and Urban Development, Mobile Home Construction and Safety Standards, 24 CFR § 3280.
See A Comparison Between HUD’s Mobile Home Construction and Safety Standards (1975) and Building Officials and Code Administra tors (BOCA) Single Family Dwelling Code (1975), which is Appendix C in the brief of amicus curiae Manufactured Housing Institute, Inc.
"At their location [mobile homes] are removed from the axles and wheels and placed on concrete pads and piers each about 6 to 7 feet apart. In addition, with units constructed during the last 3 years, hurricane bands built into the walls of the units are anchored with bolts augered 3 to 4 feet into the ground.
"[0]nce put in place and made immobile, they are often skirted around their bases. According to plaintiffs’ witness, between 75 and 80 percent of mobile homes once located are never moved. When they are moved, it takes approximately three days to dismantle the mobile home and set it up for moving, and several more days to replace it in its new location. At present prices moving expenses will range from $500 for a single-wide, to $1000 for a double-wide.” Gates v Howell, 204 Neb 256, 262; 282 NW2d 22 (1979).
"It need hardly be pointed out that these double width homes are intended to remain on site permanently, and that their removal by cranes or other heavy machinery would undoubtedly entail considerable difficulty and oftentimes considerable damage to the landscape. Insofar as the single width homes are concerned their removal would also entail some difficulty since in their current models they may he as much as seventy feet long and fourteen feet wide. Here, as with the double width homes, the intent that they remain on site permanently is entirely evident.” Koester v Hunterdon County Board of Taxation, 79 NJ 381, 386; 399 A2d 656 (1979).
Transient use could be expected, if at all, only of mobile homes located in, rather than away from, mobile-home parks. But even this expectation is not supportable in fact, for "[w]hile mobile homes were originally for transient purposes, today about 60% of all mobile homeowners never move their home. The MHMA [Mobile Home Manufacturers’ Association] reports that the average stay in one location by mobile-home owners is 58 months, which is approximately the same residency duration as in conventional housing. About 70% of the mobile homes used since World War II have been used as permanent dwellings.” Neithercut, The Mobile Home: Problems With Its Recognition as a Valid Housing Source, Newsletter, Real Property Section, State Bar of Michigan (No 10, Dec, 1975), p 25.
Note, Toward an Equitable and Workable Program of Mobile Home Taxation, 71 Yale L J 702-703 (1962).
Koester v Hunterdon County Board of Taxation, supra, p 388.
Gates v Howell, supra, pp 262-263.
Heath v Parker, 93 NM 680, 682; 604 P2d 818 (1980). See, also, Hussey v Ray, 462 SW2d 45 (Tex Civ App, 1970); Manley v Draper, 44 Misc 2d 613; 254 NYS2d 739 (1963).
Heath v Parker, supra, pp 680-681.
See Neb Rev Stat 1978 Cum Supp, § 77-202.12, and statutes cited in Koester v Hunterdon County Board of Taxation, supra, pp 388-389.
In 1975, the Vermont Planning and Development Act was amended to provide that, subject to certain minor exceptions, "no zoning regulation shall have the effect of excluding mobile homes, modular housing, or other forms of prefabricated housing from the municipality, except upon the same terms and conditions as conventional housing is excluded”. Vt Stat Ann, tit 24, § 4406(4). Former Vt Stat Ann, tit 24, § 4407(11), which permitted a municipality to confine mobile homes to mobile-home parks, was repealed.
"Approval of Alternate Types of Construction and Materials.— The building inspector may approve the use of types of construction such as prefabricated houses or materials that vary from the specific requirements of this Code if, (1) such alternate types of construction or materials comply with the recommended standards of government agencies or other national organizations which publish recognized standards relative to building materials and workmanship, or, (2) reports of agencies or laboratories generally accepted as competent by engineering authorities indicate that alternate materials or construction equal or exceed the applicable Code requirements.” Robinson Township Building Code, § 102. | [
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Per Curiam.
Defendant was tried for second-degree murder in Detroit Recorder’s Court. On March 18, 1977, the jury found him guilty of manslaughter. The trial judge sentenced defendant to 10 to 15 years in prison on March 25, 1977.
Defendant subsequently filed a claim of appeal. The Court of Appeals granted the prosecutor’s motion to affirm on May 11, 1978, and this Court denied defendant’s request for review on March 29, 1979. The validity of defendant’s manslaughter conviction is not at issue today.
On May 19, 1977, seven weeks subsequent to defendant’s sentencing, the prosecutor filed a supplemental information charging defendant as a fourth felony habitual offender pursuant to MCL 769.12; MSA 28.1084.
On October 7, 1977, a jury found defendant’s March 18, 1977, manslaughter conviction to be his third felony and found him guilty as a third offender, MCL 769.11; MSA 28.1083. The trial judge sentenced defendant to 20 to 30 years for the habitual offender charge which enhanced the manslaughter sentence of 10 to 15 years.
The Court of Appeals in an unpublished per curiam opinion vacated defendant’s habitual offender conviction and reinstated the 10-to-15-year manslaughter sentence. The Court relied upon our holding in People v Fountain, 407 Mich 96, 98-99; 282 NW2d 168 (1979).
In Fountain, we held:
"A prosecutor who knows a person has a prior felony record must promptly proceed, if at all, against the person as an habitual offender. People v Hatt, 384 Mich 302; 181 NW2d 912 (1970); People v Stratton, 13 Mich App 350; 164 NW2d 555 (1968). The prosecutor is not foreclosed from proceeding against a person as an habitual offender after conviction on the current offense provided he is unaware of a prior felony record until after the conviction. MCL 769.13; MSA 28.1085. The only recognized exception to this rule is when the delay is due to the need to verify out-of-state felony convictions based on the 'rap sheet’. People v Hendrick, 398 Mich 410; 247 NW2d 840 (1976).”
The dispositive issue in this case is whether the holding in People v Fountain should be given retroactive or prospective application.
"When the issue of retroactivity arises, the case of Linkletter v Walker, 381 US 618; 85 S Ct 1731; 14 L Ed 2d 601 (1965), is often used to determine a solution.” People v Rich, 397 Mich 399, 402-403; 245 NW2d 24 (1976); People v Hampton, 384 Mich 669; 187 NW2d 404 (1971). The three key factors in the Linkletter test are: (a) the purpose of the new rule; (b) the general reliance on the old rule; and (c) the effect of retroactive application of the new rule on the administration of justice.
It is clear that the primary purpose of the rule established in People v Fountain, is to provide fair notice to the accused of the supplemental charge so as to avoid the appearance of prosecutorial impropriety. As noted in the concurring opinion in Fountain, the decision requiring the prosecutor to proceed in this manner is based on this Court’s supervisory powers over the practices and procedures used in our courts.
When a decision of this Court involves a rule which concerns the ascertainment of guilt or innocence, retroactive application may be appropriate. People v Hampton, supra. Conversely, a new rule of procedure adopted by this Court which does not affect the integrity of the fact-finding process should be given prospective effect.
We consider the latter two Linkletter factors together because the amount of past reliance will often have a profound effect upon the administration of justice.
The former practice of filing the habitual offender information only after conviction on the current felony was widespread. Retroactive application of the Fountain policy would have an adverse effect on the administration of justice. The rule established in Fountain is procedural in nature, mandating how a prosecutor must proceed when charging a defendant as an habitual offender pursuant to a supplemental information. The guilt or innocence of the accused is not at issue. Since the purpose of the rule is to avoid an appearance of prosecutorial impropriety, it would not serve that purpose to apply the rule to past conduct.
We conclude that People v Fountain is applicable to cases pending on appeal on August 28, 1979, the date of decision in People v Fountain, provided the issue was raised during the pendency of the appeal; and in cases, the original trial or guilty plea hearing of which concluded 20 days after the date of decision in People v Fountain.
In lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we affirm the Court of Appeals decision which vacated defendant’s habitual offender conviction and reinstated the conviction and 10-to-15-year sentence for manslaughter.
Coleman, C.J., and Williams, Fitzgerald, and Blair Moody, Jr., JJ., concurred.
Pursuant to defendant’s motion, one of the prior convictions was found invalid for habitual offender purposes.
This Court in Fountain noted that the prosecutors must be presumed to have known of the defendants’ prior felony records because their offices prosecuted the prior felonies.
In the case at bar, defendant’s prior convictions were in Recorder’s Court for the City of Detroit. The prosecutors must be presumed to have known of defendant’s record since their offices prosecuted the cases.
Defendant Donald Young raised the Fountain issue in his appeal, which was pending in the Court of Appeals when we decided Fountain.
Defendant asserts that reinstatement of the 10-to-15-year sentence for manslaughter is error due to alleged defects in that sentence. He argues that the proper remedy was a remand for resentencing.
The Court of Appeals did not err and, as noted, we affirm their decision. Defendant is directed to Guilty Plea Cases, 395 Mich 96, 137; 235 NW2d 132 (1975), for the proper procedure to follow in challenging the sentence. | [
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Per Curiam.
The issue presented is whether the crime of false pretenses, MCL 750.218; MSA 28.415, may be predicated upon the misrepresentation of a present intent to do a future act. We conclude that it may not.
The defendant in the instant case pled guilty in Washtenaw Circuit Court to the charge of obtaining property having a value over $100 by false pretenses. During his plea, he admitted that he went to a Lincoln-Mercury dealer in Ypsilanti and obtained possession of a used car by telling a salesman that he would buy the car if he liked it after test driving it and having it "checked out” at a local service station. The defendant admitted that he had no such intention and made the statements in order to get possession of the car so that he could convert it to his own use.
On appeal, the defendant challenged the factual sufficiency of his plea, one of the grounds being that his misrepresentations related solely to future events or facts and not, as required for conviction of false pretenses under Michigan law, to past or present facts or circumstances.
The Court of Appeals affirmed defendant’s conviction, holding in relevant part:
"While it might appear that defendant’s misrepresentations were of a future fact, in reality what he misrepresented was his present intention which was clearly fraudulent. While there does not appear to be' any Michigan case clearly on point we quote from a Texas court in Kinder v State, 477 SW2d 584, 586 (Tex Crim App, 1971), wherein the court stated:
" 'The rule is that false promises or representations as to future happenings by which a person is induced to part with his property may form the basis of the offense of theft by false pretense so long as the proof shows that such promises are false ab initio. ’
"We find the foregoing rule enunciated by the Texas court to be sound and hereby adopt it. Defendant’s contention is therefore without merit.” People v Cage, 90 Mich App 497, 499; 282 NW2d 368 (1979).
The defendant has applied for leave to appeal to this Court.
We hold that the adoption of a rule construing false pretenses to incorporate misrepresentation of present mental state is at odds with Michigan law. The crime of false pretenses in Michigan, as in other jurisdictions, was created by statute. It is universally held, except where the statute specifically provides otherwise, that the pretense relied on to establish the offense must be a misrepresentation as to a present or existing fact, or a past fact or event, and may not be as to some event to take place in the future. Although it is quite possible to view a false statement of intention, such as a promise which the promisor intends not to keep, as a misrepresentation of existing mental state, the great weight of authority holds that a false promise will not suffice for false pretenses, however fraudulent it may be.
A minority of jurisdictions do recognize a false promise or intention as a false pretense and there does appear to be a modern trend in this direction. Professor Perkins has made the following pertinent criticism:
"One writer has suggested that interpreting the statute to exclude false promises crept into the decisions by inadvertence, so to speak. This may be true or it may be that the statute, as interpreted, was as great a step as the social order was prepared to take two hundred years ago. After all, the change from the punishment of fraud perpetrated by the use of false tokens to the punishment of fraud perpetrated by naked deceit was considerable, even if the latter did not include a misrepresentation of one’s own state of mind. However that may be the original position has been restated time and again in recent years. The first clear switch from this to the position that a false promise is sufficient to support a conviction of false pretenses (in recent times and without the aid of statute) seems to have been in California although there was a Massachusetts dictum pointing in the same direction. A start has been made toward amending the statute of false pretenses to include promissory fraud within its scope, which is entirely proper. Just as the social order of two hundred years ago had developed to the point where it was necessary to punish the swindler who operated without the aid of false tokens, so today it has developed to the further point where it is necessary to have adequate punishment for promissory fraud, but the change should be by legislative enactment. No court would permit such a statute to apply to a misdeed perpetrated before the act was passed, and for a court to convict a man by changing this interpretation which has been so firmly established for generations it is necessary to violate the principle upon which the ex post facto bar is grounded.” (Footnotes omitted.) Perkins, Criminal Law (2d ed), pp 304-305.
Our review of Michigan precedent leaves us convinced that this jurisdiction early aligned itself with the majority rule that false statements of promise or intention may not form the basis for a conviction of false pretenses. In People v Winslow, 39 Mich 505 (1878), it was held that the fact that the defendants in that case accomplished their fraud by a promise would not preclude their conviction of false pretenses because the promise was accompanied by other misrepresentations relating to existing facts. Similarly, in People v Segal, 180 Mich 316; 146 NW 644 (1914), it was held that although some of the defendant’s misrepresentations in that case related to what would occur in the future, and his promises in relation thereto, several other representations referring to existing or past facts provided the basis for the conviction of false pretenses.
In People v Widmayer, 265 Mich 547; 251 NW 540 (1933), it was explicitly held that statements made by the defendants as to events that would occur in the future and their promises as to what they would undertake to do in the future could not sustain convictions under the false pretenses statute. More recently, and more to the point, in People v Morrison, 348 Mich 88; 81 NW2d 667 (1957), a guilty plea was overturned because the defendant’s admissions established only that he made a promise relating to what he would do in the future.
The aforementioned decisions of this Court preclude a conviction of false pretenses where the misrepresentation relates only to future events or facts.
Although there may be valid arguments supporting an amendment of the false pretenses statute to incorporate misrepresentation of present mental state within the meaning of the crime of false pretenses, we are convinced that it should be done by legislative enactment.
In lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we reverse the defendant’s conviction and remand the case to the Washtenaw Circuit Court for further proceedings.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
"Any person who, with intent to defraud or cheat, shall designedly, by color of any false token or writing or by any false or bogus check or other written, printed or engraved instrument, by spurious coin or metal in the similitude of coin, or by any other false pretense, cause any person to grant, convey, assign, demise, lease or mortgage any land or interest in land, or obtain the signature of any person to any written instrument, the making whereof would be punishable as forgery, or obtain from any person any money or personal property or the use of any instrument, facility or article or other valuable thing or service, or by means of any false weights or measures obtain a larger amount of quantity of property than was bargained for, or by means of any false weights or measures sell or dispose of a less amount of quantity of property than was bargained for, if such land or interest in land, money, personal property, use of such instrument, facility or article, valuable thing, service, larger amount obtained or less amount disposed of, shall be of the value of $100.00 or less, shall be guilty of a misdemeanor; and if such land, interest in land, money, personal property, use of such instrument, facility or article, valuable thing, service, larger amount obtained or less amount disposed of shall be of the value of more than $100.00, such person shall be guilty of a felony, punishable by imprisonment in the state prison not more than 10 years or by a fine of not more than $5,000.00.”
35 CJS, False Pretenses, § 5, pp 809-811.
35 CJS, False Pretenses, § 8, pp 814-817.
35 CJS, False Pretenses, §§ 9-10, pp 817-820; LaFave & Scott, Criminal Law, § 90, pp 657-658.
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Fellows, J.
Defendant operates the cafeteria in the Masonic temple on Fulton street in the city of Grand Rapids. On the morning of June 21, 1923, he drove to his work in his Hupmobile touring car accompanied by his wife and one of his employees. It is his claim that he reached the temple about 5 minutes before 8 and that he run his car about a foot and a half from the curb, cramped the wheels so they rested against the curb, put the gear in reverse, and set the brake. From the Masonic temple to where Fulton street intersects Jefferson avenue is down grade about four to four and one-half feet per hundred feet. From where the car was left to the point of the accident was around 400 feet. On this morning plaintiff was walking on Jefferson on his way to his office. When he reached Fulton he crossed Jefferson on the south side of Fulton and had reached the curb when he was struck by defendant’s car running without a driver, and received serious injuries. The negligence counted on is the improper parking of the car.
Defendant’s counsel asked for a directed verdict on the ground that no negligence of defendant was proven. It is his claim that in view of defendant’s testimony he properly parked the car, and in view of the burden being upon plaintiff to establish negligence of defendant, there was nothing in the case to take it to the jury without adopting the rule res ipsa loquitur, which is not recognized by this court. In Burghardt v. Railway, 206 Mich. 545 (5 A. L. R. 1333), this court said:
“This court has not adopted the rule res ipsa loquitur; we have uniformly held that the happening of the accident alone is not evidence of negligence; and we have as uniformly held that negligence may be established by circumstantial evidence, and that where the circumstances are such as to take the case out of the realm of conjecture and within the field of legitimate inferences from established facts that at least a prima facie case is made” (citing authorities).
An examination of the authorities there cited will disclose the holdings of this court under varying circumstances. See, also, Ignaszak v. McCray Refrigerator Co., 221 Mich. 10, and authorities there cited.
Assuming then, as we should, that the happening of the accident alone was not evidence of negligence, and alone did not take the case to the jury, we approach the record to determine whether it contains testimony directly from witnesses or proven facts from which legitimate inferences may be drawn making the question of defendant’s negligence one of fact for the jury and disputing the testimony given by him. The time of the accident ;was an important fact in the case. Defendant claims it did not occur until 25 or 30 minutes after he left his car in front of the Masonic temple. Manifestly if the machine remained where left on this inclined street for this length of time, this fact would be confirmatory of the claim that it had been properly parked. On the contrary if it left the point in front of the Masonic temple and proceeded down the street some 400 feet and struck plaintiff within from three to five minutes, this fact might be considered by the jury together with the other testimony in determining the crucial question of whether it was properly parked. Plaintiff claimed the accident occurred before 8 o’clock; other witnesses put it about 8 o’clock; and some put it shortly before and some shortly after 8 o’clock. The defendant’s testimony on the question of time was not undisputed and its credit was for the jury. Plaintiff called two witnesses who testified to driving by the Masonic temple shortly after 8 on the morning in question and seeing defendant’s car in the street, that the wheels were straight ahead and the car was moving slowly down the hill, just “crawling,” that it gained speed as it went and crashed into the corner of Jefferson and Fulton; the testimony of the witnesses who pushed the car off plaintiff clearly demonstrated that the brake was not set, and a witness who examined the gear testifies that it was in neutral. A witness testified to hearing defendant say:
“I.will bet that the next time I will see that my wheels are cramped to the curb.”
This being a statement by defendant, it was admissible whether it was a part of the res gestee or not. We think the plaintiff made such a case as to take the question of defendant’s negligence to the jury.
Some mention of insurance was made during the trial and wherever objection was made it was stricken out. The trial judge instructed the jury:
“Something has been said about insurance. There is not anything in this case which would justify the consideration of that subject, and you should eliminate it from your consideration of the case, and any suggestion that has been made on that subject during the trial.”
What occurred did not constitute reversible error. Morris v. Montgomery, 229 Mich. 509. Error is assigned on certain excerpts from the charge. In the main these assignments of error grow out of defendant’s contention that he was entitled to a directed verdict and are disposed of by what has been already said. Considering the charge as a whole, as we must do, we think it was an eminently fair one to defendant and submitted the case as favorably to him as he ,was entitled to.
A motion was made for a new trial, the question properly saved, and it is here urged that the verdict was against the clear weight of the evidence. We can not agree with this contention. On the question of the time of the accident, the plaintiff’s testimony clearly preponderated. This necessarily affected the credibility of the testimony of defendant and his witnesses. Defendant’s wife and the other occupant of the car were both unfamiliar with the mechanism of its operation and for this reason their testimony was not as helpful on the question of what defendant did as it otherwise would have been. Upon the whole the verdict was not against the clear or overwhelming weight of the evidence.
The judgment will be affirmed.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Steere, and Wiest, JJ., concurred. | [
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Sharpe, J.
Defendants review their conviction and sentence on a charge of pandering, in violation of Act No. 389, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 15500), by writ of error. At the hearing in this court, the prosecuting attorney confessed error. We have examined the record with care, and are satisfied that such errors occurred in the admission of evidence as warranted this concession and necessitate a reversal.
The defendants were first put on trial on October 2, 1924. After a jury had been sworn and a witness examined in part, a recess for luncheon was taken. When court reconvened, the jury were discharged for the reason hereafter stated. Another jury was impaneled and sworn. Defendants entered a plea of former jeopardy, which was overruled. The assignment of error based on such action must be con sidered, because, if the plea should have been sustained, it must result in the discharge of the defendants.
The record discloses that when the court reconvened after luncheon on October 2d, the prosecutor, in the absence of the jury, stated to the court that he had been informed that “the daughter of the defendants was at the lunch table with two of the jurors.” This daughter, Mrs. Stevens, was questioned by the court. She stated, in answer to a question, “How did you happen to do that?” “I don’t know. I just sit there. You know, we don’t find no place and we just stop there.” On being asked if she recognized the men at the table as jurors, she said, “I seen them sit in the chair.” When afterwards asked, “You knew when you sat at the table that they were jurors in this case?” she answered, “No, I didn’t,” and, on being pressed, “Are you sure of that?” said, “I am sure.” She was then asked if she talked with the men, and answered, “No.” Later, she was again asked, “Were you talking to these two jurymen?” She answered, “I never said nothing. I am telling you the God’s truth.” “Did they tell you anything?” “The man said, ‘Have you got any case?’ I said, ‘Yes, it is my mother’s case.’ That is all. I have nothing to say more.” This was followed by a private conference between the court, the prosecutor and the defendants’ attorney. The jury were then called in. The two jurors were questioned. They stated that two ladies, one of them being Mrs. Stevens, sat down at the same table with them, that “some remarks passed back and forth,” and that one of them said she was the daughter of the two defendants on trial, and that one of the jurors said to her, “You better had say nothing to us, because we are one of the jurors.” After deliberation, the trial court concluded that the interests of justice required the discharge of the jury.
The constitutional provision (art. 2, § 14) relating to former jeopardy, and the decisions of this court construing it, were considered in a recent case by Mr. Justice Steere (People v. Schepps, ante, 260). It was there pointed out that a jury may be discharged, pending the trial, only in cases “where a manifest necessity arises or facts are discovered showing in the opinion of the court that the ends of public justice would otherwise be defeated.” It was also said that—
“This court is not required to pass upon the wisdom of the course the trial court pursued, but upon whether there were sufficient circumstances shown for a basis of the trial court’s decision,” etc.
What occurred necessitated the exercise of the court’s judicial discretion in granting or denying the motion of the prosecutor. Unless there was a clear abuse of such discretion, we should not order these defendants discharged. Had the trial proceeded without any reference t'o what occurred in the cafe, it would, doubtless, as stated by the jurors, have made no impression upon them. The result of the investigation conducted, and properly so, by the court could but have left them impressed with the thought that the opinions they might express in the jury room as to the guilt or innocence of the defendants would be closely scrutinized by their fellow jurors and the conclusion they reached commented upon at the close of the trial. The trial court had the opportunity, denied to us, of seeing the parties interrogated, observing their frankness, and observing the effect of what occurred not only upon the two jurors but upon the rest of the panel. After due consideration, we are unwilling to say that there was such an abuse of discretion on his part in ordering the jury discharged as should have caused him to sustain the plea of former jeopardy.
The conviction and sentence are reversed and set aside, and a new trial granted. The defendants, if serving their sentence, will be remanded to the custody of the proper officials of Wayne county, to await such trial.
McDonald, C. J., and Clark, Bird, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Moore, J.
The sole question in this case arises out of the claimed invalidity of the search warrant and the proceedings taken under it. On the 26th day of October, 1924, one Frank Bettenbender made an affidavit before a justice of the peace, asking for a search warrant. This affidavit was in the usual form and stated that the reasons for the belief of the affiant were:
“Deponent has seen intoxicated persons on the premises. Deponent has seen persons drinking moonshine whisky on the premises. Deponent has seen whisky purchased on the premises.”
Acting under the search warrant issued on this complaint the officer made a search of the premises described in the warrant and took possession of one and one-half pints of moonshine whisky. The defendant thereupon filed a motion to suppress “all the evidence in this cause relating in any manner to any liquors obtained by the officers in their search,” and asking further for an order “quashing the complaint, warrant and information in this cause and discharging the respondent from further custody or trial in said cause.” This motion was overruled. The case came on for trial. When the liquor was offered in evidence objection was made to its reception. This was overruled and the trial resulted in the conviction of defendant, and his sentence by the trial judge. The case is in this court by writ of error.
Counsel for the people seek to sustain the conviction by citing People v. Christiansen, 220 Mich. 506; People v. Warner, 221 Mich. 657. We think those cases are not controlling.
It will be noticed that in the affidavit it was not stated when the intoxicated persons were seen, nor when persons drinking moonshine whisky on the premises did the drinking, nor when the whisky was purchased, nor from whom it was purchased. We think the affidavit was fatally defective and that the warrant was invalid. See People v. Marxhausen, 204 Mich. 559 (3 A. L. R. 1505); People v. Effelberg, 220 Mich. 528; People v. Hertz, 223 Mich. 170; People v. Musk, 221 Mich. 578; People v. Preuss, 225 Mich. 115; People v. Chippewa Circuit Judge, 226 Mich. 326; People v. Mushlock, 226 Mich. 600.
The conviction and judgment are reversed and defendant is discharged.
McDonald, C. J., and Clark, Bird, Sharpe, Steere, Fellows, and Wiest, JJ., concurred. | [
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Wiest, J.
January 10, 1922, Jesse S. Dennis operated a potato warehouse at Brutus and, at his request, plaintiff railroad company placed a refriger.ator car on his side track to be loaded with potatoes. The weather was cold and it was necessary to have a fire in the car. The loading was not completed the day the car was placed and during the night the car caught fire and was damaged. Mr. Dennis died and plaintiff presented a claim against his estate for the damage occasioned the car. The claim is predicated on the law of bailment. Upon trial by jury verdict was rendered in favor of defendant and judgment entered thereon. Plaintiff reviews by writ of error. The points presented turn upon whether the burden remained with plaintiff, at all stages of the trial, to establish by evidence that the fire was occasioned by the negligence of Mr. Dennis, hereinafter called defendant. To protect the potatoes from frost, a so-called potato stove was installed in the center of the car, with a pipe, protected by tin, passing through a hole in a false door and an oil heater placed in the ice bunker at each end of the car. The car was lined with heavy paper, and about six inches of straw placed over the floor, but not where the stove stood. Upon this straw, bags of potatoes were piled. The paper lining and the use of straw and the loading followed the customary practice. No defect in the stove was shown but it is claimed that where the pipe went through the false door there was but the thickness of a sheet of tin between it and the wood. This, however, was controverted. Plaintiff claimed at the trial that it was customary to dump the fire from the stove at night or leave only a few coals with the stove draft tightly closed and offered proof tending to show there was a considerable fire left in the stove. This also was controverted by testimony that the stove was dumped. About midnight a train crew discovered sparks dropping from the center of the car and when the car door was opened the fire was found all over the east side of the car in the vicinity of the door and upon each side of it. The car when placed on the side track was in good order. Plaintiff claims:
“That when it showed delivery of the car in good condition to the defendant, it made a prima facie case against the defendant, and that at once the burden of proof devolved upon the defendant to show that, while the car was in his possession and under his control, he was free from negligence, and exercised due and ordinary care, as to the cause or causes by reason of which the car was damaged.”
This position was covered by several requests to charge, and presents the decisive point in the case. The circuit judge was of the opinion that plaintiff, in order to recover, had the burden of establishing want of care on the part of defendant, and defendant was not required to exonerate himself from blame for the fire, by showing due care. Plaintiff does not claim defendant was an insurer of the car against loss or damage by fire; while counsel for defendant insists he would be held as an insurer if required to respond in damages unless he frees himself from blame. The rule contended by plaintiff, in a case of damage by fire, rests on the doctrine res ipsa loquitur, which does not prevail in this jurisdiction. We get no help from the cases of bailment where the damage could only happen by reason of want of care; such eases stand apart from damage occasioned by fire, for fire is a risk incident to property and not always occasioned by negligence. The bailment in this instance was for the mutual benefit of the shipper and the-carrier. The purpose was to load the car with potatoes, and the customary method to be employed, and the essential of heating the car, and manner thereof, were understood by both parties and became a part of their contract of bailment and must be considered in measuring the rights of plaintiff and the liability of defendant. Defendant at the time of the fire was making an authorized use of the car. and whether he was negligent in such use was an issue of fact, with the burden resting at all times upon the plaintiff. Plaintiff made a prima facie case in showing delivery of the car in good order to defendant and its return in a damaged condition, but, in showing the damaged condition was occasioned by fire, it destroyed its prima facie case and the duty of showing negligence remained. When a bailor shows the damage was by fire there is no prima facie case of negligence made and the bailee is not called upon to go forward with proof in exoneration, for fire does not necessarily speak of negligence in its origin. The circumstances disclosed relative to the fire, its place of origin in the car and its inferred cause, from known facts, were for the jury and constituted a part of plaintiff’s case under its charge of negligence, but diet not shift the burden to defendant to exonerate himself by a showing of due care.
We think the rule in case of damage by fire is well stated by the annotator in 9 A. L. R. 559:
“The questions under annotation as to the burden of proving negligence and as to presumptions of negligence, where the subject-matter of the bailment is destroyed by fire, are not free from difficulty, due in part to differences of opinion of the different courts, but more especially to confusion in the use of the phrase ‘burden of proof,’ and to the fact that there is usually some evidence as to the circumstances of the fire, and the question whether negligence may be presumed from the fact of the fire arises in connection with the circumstances of the particular case. The terms ‘burden of proof’ and ‘going forward’ with the evidence are, of course, quite distinct, when properly used, a duty to go forward with the evidence frequently resting on one who does not have the ultimate burden of proof.
“The rule seems to be well settled that a prima fade case is ordinarily made out for the bailor when he proves the bailment and a failure to return the property on demand. The duty then devolves on the bailee to ‘go forward’ with evidence to rebut this prima fade case. The important question for the purposes of this note would seem to be whether proof of destruction by fire is in itself sufficient in rebuttal, or whether an inference may be drawn from the mere fact of the fire that the bailee was negligent, imposing on the bailee the duty of producing evidence as to the circumstances of the fire sufficient to show, at least prima fade, that he exercised due care. If no such inference arises, as the majority of the cases holds, then it would seem that the failure to return the property being accounted for by a cause not in itself tending to show negligence, the bailor’s prima fade case disappears and he still has the duty of going forward with the evidence, as at first, to prove that the loss was due to the bailee’s negligence. This is the view sustained, apparently, by the weight of authority.
“It must be apparent that, on the question under consideration, cases of loss by other causes than by fire, while valuable sometimes for argumentative purposes, are by no means conclusive authority. Losses by theft would appear to be closely analogous.”
Grand Rapids, etc., R. Co. v. L. Starks Co., 172 Mich. 270 (Ann. Cas. 1914C, 632), does not support the contention of plaintiff. It is true the trial judge in that case instructed the jury, in substance, in accord with the claim of the plaintiff herein, but judgment there passed for defendant and, upon review by plaintiff, this court without approving the instruction, so given, held the plaintiff could not complain. This was not equivalent to saying that plaintiff was entitled to such an instruction. We there called attention to decisions upon “the rights and responsibilities of parties connected with the destruction by fire of a potato car, in which a stove has been set up and fire maintained,” and quoted:
“That the burden of proof upon all the issues raised by both counts [the losses occasioned by the destruction of Rolfe’s storehouse and of the two cars] was upon the plaintiffs. The fact that the defendant had the exclusive control of the interior of the potato car did not alter the situation in this respect,”
and stated:
“This is contrary to plaintiff’s contention that proof of the destruction of the car by fire, while defendant was in control of the said car and maintaining a fire in it while engaged in its loading, established liability, unless defendant proved itself free from negligence. But the court did, as we have shown, put the burden of such proof on defendant, in whose behalf testimony was introduced to the effect that it was necessary and customary to maintain fires in stoves in such cars while being loaded with potatoes in the winter; that this was known and permitted by plaintiff; that the stove was sound, of the kind commonly used and was' properly set up in the usual manner; that due care was exercised in firing and caring for the same, thus squarely raising an issue of fact for the jury as to defendant’s negligence.”
The court then stated a disposition of the case and not a rule of law governing issues and instructions in future cases, in saying:
“We think, under the authorities cited, that the charge of the court upon that issue was fully as favorable to the plaintiff as it was entitled to.”
This does not sanction the rule invoked by plaintiff.
The so-called “modern rule” is applicable to cases where loss of or damage to the subject of bailment necessarily speaks of negligence. See Thomas Canning Co. v. Railway Co., 211 Mich. 326, and cases there cited. But, as we have pointed out, loss by or damage to property by fire carries no such message.
We find no reversible error.
The judgment is affirmed, with costs to defendant.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Steere, and Fellows, JJ., concurred. | [
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Wiest, J.
Floyd R. Good, aged 24, was a brakeman in the employ of defendant and, December 22, 1922, a locomotive boiler exploded and killed him. He left a wife, to whom he had been married 19 months, and a female child, 6 months of age. This suit was brought under the Federal employers’ liability act to recover for the widow and the child their pecuniary loss occasioned by his death. Liability is conceded by defendant. The jury awarded $15,166.66 compensation. Defendant reviews by writ of error. The errors relied on relate to requested instructions, the charge of the court and the claim that the verdict is •excessive. From the time of his marriage to the day of his death, a period of 19 months, decedent earned $1,204.65, an average of $760.80 per year, or $63.40 per month. His employment by defendant extended over a period of 72 days and was somewhat irregular. From the date of his marriage he and his family lived with his wife’s parents, and for board and room he agreed to pay $22 per week, but at the time of his death he was indebted for such board and room some $300 or $400 and owed also a doctor’s bill of $50.
Defendant's requests to charge bring before us the question of whether the jury should have been instructed that, in the absence of evidence tending to show a reasonable prospect of larger earnings by the deceased, had he lived, they should base their findings of pecuniary loss to the widow and child upon his known earnings and contributions and not upon a mere speculative supposition of increase in earnings under problematical future opportunities. With the modification we shall point out respecting the child, we think the issue should have been so circumscribed. See Richmond, etc., R. Co. v. Elliott, 149 U. S. 266 (13 Sup. Ct. 837). The pecuniary loss to an infant, in the death of a parent, may go beyond consideration of food, shelter, clothing and like material comforts, and include the expense of supplying such degree of nurture, and intellectual, moral and physical training, as the evidence shows such parent was, by reason of ability, character and temperament capable of giving. Mere parentage however does not carry such a showing. Evidence relating to the nurture bestowed and revealing the intellectual powers and moral character of the person is available and must be introduced to show the extent of what would have been supplied by the deceased had he lived, and, by reason of his death, need now be bought and paid for. To measure what has been lost, it is necessary to consider the capacity of the parent to bestow. Without such light the jury would have.to apply their own standards based on their individual experiences, and these would, of necessity, “be as various as their tastes, habits and opinions.” See Michigan Cent. R. Co. v. Vreeland, 227 U. S. 59 (33 Sup. Ct. 192, Ann. Cas. 1914C, 176). And the result would therefore be reached without considering the parent at all. The evidence falls short on this subject and there was error in permitting the jury to assess damages for such a loss.
The widow was 21 years of age at the time of the trial and defendant requested the court to instruct the jury to consider, in fixing the period of loss of support, the possibility of her remarriage. This was covered by the tenth request and was not given, nor the substance thereof included in the charge. The possibility of so young a person contracting another marriage should have been permitted to temper the thought of celibacy for 39 years. Jones v. McMillan, 129 Mich. 86.
It is difficult from this record to determine the amount of pecuniary aid actually given by decedent to his wife and child. We are informed of his earnings and his inability to support his wife and child without going in debt. This is not a suit to recover the loss to decedent’s estate of his prospective earnings, but only to recover the pecuniary loss sustained by his widow and child. Such loss, in no event, could approximate his earnings, for the expense of his own needs would have to be met along with the needs of his family: Considering the disclosed earnings of decedent, and the absence of evidence showing good reason for an increase in earning power, we think the verdict excessive. The amount awarded would yield an income, if placed at interest at five per cent., of $758.33 per annum, come within $3 of decedent’s average yearly earnings, and at the end of 39 years the sum awarded would still be intact. In Chesapeake & Ohio R. Co. v. Gainey, 241 U. S. 495 (36 Sup. Ct. 633), the widow had verdict for $16,000, and it was insisted that the award, if placed at interest, would yield an annual income greater than the amount the widow would have received, and yet leave her the principal to dispose of at her death. It was held such a result is not permissible.
The purchase of an intended home on contract, and upon which $40 had been paid, had no legitimate purpose beyond showing that so much of decedent’s earnings had been devoted to the joint advantage of himself and wife. Increase in expenses after decedent’s death could not measure the support lost, for plaintiff's proofs established the fact that expenses previous to 'his death could not be met out of his earnings. Evidence disclosing the state of health of the widow and child should have been introduced in order that the jury might determine the life expectancy of the widow and whether the child would probably live to reach the age of 21 years.
For the errors pointed out, the judgment is reversed and a new trial granted, with costs to defendant.
McDonald, C. J., and Clark, Bird, Sharpe, Steere, and Fellows, JJ., concurred. Moore, J., concurred in the result. | [
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McDonald, C. J.
Earl Gardner suffered an accidental injury to his lip while working for the Michigan Sugar Company at its Essexville plant in Bay county. A severe infection of the face and neck developed and he was sent by his employer to Dr. S. L. Ballard, who had been designated by the company to treat its injured employees. The doctor was away deer hunting, but his brother, Dr. W. R. Ballard, examined the plaintiff’s lip, gave him some medicine and told him to return the next day. The next day Dr. W. R. Ballard sent him to Dr. Charles L. Hess, who treated him for nearly a week. He suffered great pain, was not able to sleep and did not seem to be making satisfactory progress under the treatment by Dr. Hess. He consulted his family physician, Dr. A. M. Warren, who advised him to notify the company that he had gone to another physician. He notified the manager of the company by letter but received no reply. Dr. Warren treated him from November 21, 1923, to the time of his recovery on January 9, 1924, and charged $39 for his services. An award was made allowing compensation for disability and $39 for medical treatment. No complaint is made as to the award for compensation, but the defendants here insist that they are not liable for medical services for the reasons stated in their brief, as follows:
“(1) The order of the department of labor and industry relative to- medical expenses is void for indefiniteness and uncertainty.
“(2) Earl Gardner is not entitled to receive from appellants the sum of $39 for services rendered to him by Dr. A. M. Warren.”
1. The claim that the award for medical expenses is void, for indefiniteness and uncertainty, is so plainly without merit that it requires no discussion.
2. The objection to the allowance for the services of Dr. Warren is based upon the fact that the company did not select him to treat the plaintiff. The general rule that the employer has a right to select the doctor who shall treat an injured employee is not questioned; but, it is claimed, that under the facts and circumstances shown by this record the plaintiff was warranted in securing the medical attendance of his family physician at the company’s expense. The company’s doctor, to whom the plaintiff was sent for treatment, was unable to treat him because of his absence from home, but his brother, Dr. W. R. Ballard, who apparently was looking after his patients, gave him one treatment, declined to treat him further, and referred him to Dr. Hess. Neither Dr. W. R. Ballard nor Dr. Hess was selected by the company to treat the plaintiff. He was not satisfied with the progress he was making towards recovery under the treatment of Dr. Hess. He naturally turned to his family physician, Doctor Warren, with whom he was acquainted and in whom he had confidence. But he twice notified the company by letter, inquiring if it was all right to employ Dr. Warren. He got no reply to his letters. The company made no objection and tendered him no other medical service. That the services of a doctor were immediately necessary, and that Dr. Warren’s treatment was beneficial to the plaintiff, and that his charges therefor were reasonable, is not questioned. In view of these facts, we think that the plaintiff was justified in selecting a doctor to treat him at the company’s expense, and that, therefore, the award should be sustained.
The writ of certiorari is dismissed, with costs to the plaintiff.
Clark, Bird, Sharpe, Moore, Steere, Fellows, and WlEST, JJ., concurred. | [
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Wiest, J.
These two cases involve identical issues, were heard together in the circuit, and come here in a single record on appeal. While there are three defendants, the issues require reference to but the People’s Lumber Company and it will be styled defendant in this opinion. Suits to foreclose mechanics’ liens proceeded to decrees on July 5, 1923, granted plaintiffs herein 15 days in which to pay the amounts found due, and, in default of payment, authorized sales of their properties. In October, 1923, and more than 15 months from the time of filing the bills for foreclosure, plaintiffs tendered the amounts decreed due, together with costs and expenses, and, upon rejection, filed the bills herein to enjoin sales. Upon the hearing the bills were dismissed, the court holding the periods of redemption had expired, and, besides, plaintiffs did not keep their tenders good by payment into court and made no profert of payment.
If such tenders were timely plaintiffs may have the sales enjoined, otherwise not. In rejecting the tenders, reliance was placed upon section 14814, 3 Comp. Laws 1915, which provides how sales shall be made under decrees for lien foreclosures: “and all lands sold under such order or decree of the court may be redeemed at any time within fifteen months from the time of filing such bill for such foreclosure.”
Defendant insists that plaintiffs lost their equitable right of redemption because the tenders were not made until more than 15 months after the filing of the bills to foreclose the liens. One of the lien foreclosure suits was filed September 14, 1921, and the other February 24,1922, so more than 15 months had elapsed when the foreclosure decrees were entered on July 5, 1923, and if defendant’s contention is sound the right of equitable redemption expired before the decrees found the amounts due, granted 15 days in which to pay and, in default of payment, authorized sales.
The statute relied on by defendant provides for redemption after sale and, as such redemption, as distinguished from payment, can hardly be made before sale, it is evident the statute relates solely to redemption after sale. The tenders of payment in full were before sales, rested upon right to pay and not in any sense upon right to redeem, except it be termed an equitable right to redeem, were timely and should have been accepted. It is true the decrees of July 5, 1923, granted' plaintiffs herein 15 days in which to pay the liens, and they did not tender payment within such time, but the alternative was not loss of right to pay after such time, for such a result would constitute strict foreclosure.
Defendant insists that plaintiffs are without remedy because the tenders were not kept good by payment of the money into court and offer to do equity in the premises. The bills were framed under the claim of wrongful refusal by defendant to accept the tenders and a consequent loss of liens. See Van Husan v. Kanouse, 13 Mich. 303. While the evidence shows defendant was in error in refusing the tenders, such error rested upon a mistake of law and was not colored with a design to .perpetrate a wrong. Defendant had but liens, before decrees, enforceable by foreclosure, and after decrees, liens enforceable by sales of the premises. Liens, whether by mortgage or under the mechanics’ lien law, stand only as security for the payment of debts or obligations and, in this State, constitute no grant of the land upon which they rest, short of sale and expiration of period of redemption without payment, and payment may be made any time before sale. Caruthers v. Humphrey, 12 Mich. 270; Hogsett v. Ellis, 17 Mich. 351. Citations to the same effect might be multiplied.
Plaintiffs are not entitled, by reason of their tenders, to discharges of the liens. As stated in Hayward v. Chase, 181 Mich. 614:
“It seems to be a well-established doctrine in this State that, even if a proper tender is made, it will not discharge a mortgage lien, unless the tender is refused in bad faith.”
We find no bad faith on the part of defendant in refusing the tenders, but only a mistake as to the law, and one quite likely to arise under the provisions of the statute mentioned. Defendant has no right to sell and must now accept the tenders made. The amounts tendered were sufficient. Conscience of the court will be content with payments, by plaintiffs, of the sums tendered.
If such sums are paid into court, within ten days from the entry of decree herein, the liens will be, ipso facto, satisfied and discharged, and plaintiffs will recover costs. If not so paid the decrees in the circuit will stand affirmed, with costs to defendant.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Steere, and Fellows, JJ., concurred. | [
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McDonald, C. J.
The plaintiffs here ask a review of a judgment of the circuit court of Kent county, made on the hearing of an appeal from an order of the probate court in the estate of Payson M. Doty, deceased. Payson M. Doty died October 28, 1916, leaving a last will and testament in which his widow, Fannie E. Doty, was nominated executrix. On the 9th of November, 1916, she was appointed special ad-ministratrix, and continued to act in that capacity during the litigation which followed. She offered the will for probate and on the 24th day of September it was admitted as the will of the deceased. An appeal was taken to the circuit court by Clara Seeger, a daughter of the deceased. The trial there resulted in a verdict that the instrument offered for probate was not the will of the deceased. The case was reviewed by this court and the judgment of the circuit court reversed in Re Doty’s Estate, 212 Mich. 346. It was again called for trial in the circuit court, and after the taking of some testimony the jury was instructed to return a verdict sustaining the will. No further action was taken by the contestant and the case was remitted to the probate court where the proceedings here involved were then begun on the filing of a petition by the plaintiffs. The subject-matter of the petition, so far as is necessary to an intelligent understanding of the questions for our consideration, is concisely stated by, Probate Judge Higbee in the order appealed from, as follows:
“The First Methodist Episcopal Church of Ann Arbor, in the State of Michigan, as trustee named in the will of said deceased for itself and for the Sunday school (fifth ward) ‘Lower Town’ of the city of Ann Arbor, Michigan, named in said will, having on January 10, 1923, filed its petition asking among other things for the removal of Fannie E. Doty as special administrator, and that she be not appointed executor of the will, or that, in the event that she is appointed, a co-executor be appointed; also that the court determine the amount of income due to the present time to this petitioner’s cestui que trust, and that the special administrator be ordered forthwith to pay to petitioner for the use of its cestui que trust one-sixth of the entire net income of said estate since decedent’s death, to the date of said order; and that the special administrator be required to file a new and complete inventory of said estate; and a complete account of all her actions and doings as special administrator. And the court also having under consideration the various objections made by the petitioner to the accounts filed by the special administrator as a result of the filing of said petition by petitioner. Also the prayer of petitioner that the bill of its counsel, Swarthout & Master, be allowed for services and expenses in conducting successfully the contest growing out of the probate of the will,” etc.
On the hearing of the petition the probate judge refused to order the payment out of the estate of counsel fees for services of Swarthout & Master in contesting the will. On appeal to the circuit court the order was in this respect affirmed.
This presents the first question for our determina tion. Has the probate court authority to order reasonable counsel fees and expenses rendered in defending the will, to be paid out of the estate? The counsel, whose charge for services we are here considering, were not employed by the administratrix. They represented the First Methodist Episcopal Church of Ann Arbor, to which the will gave all of the estate for certain purposes after the death of the widow and daughter. But it is not important who employed them. There is no authority either in the statute or in any precedent of this court authorizing the payment out of the estate of counsel fees for services rendered in a will contest. The question of the right of an executor to employ counsel to assist in establishing a will or in defending it, and the authority of a probate court to allow payment for such services out of the estate, is thoroughly discussed in Stover v. Wayne Probate Judge, 219 Mich. 566. We there held that in this State the probate courts derive all their authority to award costs and expenses out of an estate from the statutes, and that there was no statute in Michigan conferring such authority.
Since the Stover Case the Michigan legislature has provided for the employment of counsel under certain circumstances in will contests and for the payment of their fees out of the estate (Act No'. 281, Pub. Acts 1923). In view of this legislative action the question here under consideration will probably not arise in the future, but if it should, the principles enunciated in the Stover Case, except as rendered inapplicable by the recent statute, are conclusive and controlling. It should be remembered that in this State there is no legal duty resting on a nominated executor to establish or to defend a will. His only duty is to conserve the estate pending the litigation. The result of the will contest cannot in any way affect the quantum of the estate. Therefore the executor is not interested, except under the circumstances specified in the recent act of the legislature, which have no application here. In all cases from other jurisdictions, cited by counsel, where fees have been allowed to be paid out of the estate, the ruling is predicated on the assumption that it is the legal duty of the executor to establish the will. We think the question here presented is controlled by the Stover Case, and that the circuit court did not err in refusing to authorize the payment of counsel fees out of the estate. It was proper for the First Methodist Episcopal Church of Ann Arbor to employ counsel to defend the will, but their fees are chargeable against the trust fund only.
Further objection is made to the judgment of the circuit judge in modifying the order of the probate court as to the widow’s allowance. By virtue of the statute relative to a widow’s allowance in a testate estate, the widow is entitled to an allowance for one year after her husband’s death. At the time of her appointment as special administratrix the widow inquired of Judge Prescott, who was temporarily presiding in the Kent probate court, what she would be allowed to withdraw from time to time for her support, and he replied not to stint herself. Presumably acting on this advice she drew $2,230 during the first year. No other application was made for an allowance, and no order fixing the amount was entered until the filing of her final account six years later. She then asked that an order of allowance be made. In fixing her allowance at that time, which by statute is limited to one year after her husband’s death, the probate judge had no better guide as to her needs than the amount she had drawn during that period under the advice of Judge Prescott, not to stint herself. That amount was $2,230. The amount to be fixed was within the sound discretion of the probate judge. We think that he made a very sensible and reasonable order under the circumstances. The circuit judge erred in increasing the allowance to $5,000. In dis cussing this question, we have passed without deciding the several objections raised by counsel to the right of the circuit judge to consider the matter on appeal.
It is also urged that the circuit judge erred in reversing that portion of the order appealed from which required the administratrix to pay the amount due under the will to the “Lower Town Sunday school” of Ann Arbor. The will provides that after the wife and daughter of the deceased have received their shares of the net income, they should pay the balance for the benefit of the “Lower Town Sunday school.” The administratrix was quite right in refusing to pay any of the income to the First Methodist Episcopal Church of Ann Arbor for the benefit of the Lower Town Sunday school, while the litigation over the will was pending, but now that the judgment sustaining the will has been remitted to the probate court and she has qualified as executrix, there is no good reason why she should withhold the payments. As the will has been sustained, that part of the income provided for the Sunday school began to accrue at the time of Mr. Doty’s death. In respect to the matter the probate judge made the following order:
“That she may pay to the First Methodist Episcopal Church of Ann Arbor as trustee for the use of the Lower Town Church $7,000 (the same being 1/6 of the total net income of the estate according to Mrs. Doty’s estimate, figured for 7 years at $83.33 1/3 per month) plus interest on that sum at 5% for one-half the time since Mr. Doty’s death, figured to October 28, 1923; being $1,225; a total of $8,225. This amount is to be paid to said' trustee within thirty days from the date of this order.”
It will be noted that this order requires the payment of $7,000 principal and $1,225 interest. In view of the fact that the administratrix rightfully withheld the payments until the litigation was settled, there should be no interest allowed. The circuit judge says that the item of $7,000 is “through some error greatly in excess of the correct amount,” but does not state what he considers the correct amount. If the amount determined by the probate judge is wrong, he has authority to correct it in accordance with the facts. In his opinion the circuit judge says that, “it is the widow and daughter who have the right and the duty to select such Sunday school in the designated portion of Ann Arbor as in their judgment will answer the terms of the will.” The judgment follows this conclusion. He was clearly in error. There is no question as to what Sunday school the testator had in mind, nor is there any doubt as to its connection with the First Methodist Episcopal Church of Ann Arbor. Considered in its entirety, the will plainly shows that this church was to have charge of all funds provided for the “Lower Town Sunday school.” The conclusion of the circuit judge in respect to this portion of the order appealed from is not supported by any evidence. Except as to the matter of interest, the order of the probate court should be affirmed.
Complaint is also made as to the action of the circuit judge in reversing the order of the probate court requiring the administratrix to file a new and complete inventory of the estate. We think the order of the probate judge was reasonable and should be complied with. The circuit judge was wrong in reversing it.
The other objections to the findings and order of the circuit court are without merit. They require no discussion.
• The judgment is reversed in part and affirmed in part. The plaintiff First Methodist Episcopal Church of Ann Arbor will have costs.
Clark, Bird, Sharpe, Moore, Steere, Fellows, and WlEST, JJ., concurred. | [
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McDonald, C. J.
The purpose of this bill is to enjoin the defendants from violating a building restriction covering property in the LaSalle Gardens subdivision in the city of Detroit. The plaintiffs are all property owners in this subdivision, which contains 405 lots. The defendants are the owners of a residence on the north 60 feet of lots 151 and 152 in which they reside, and in which the defendant Edward J. Campbell carries on an extensive real estate business, using the front of his house and front yard for large signs, which are offensive to his neighbors. It is also alleged that he has begun the erection of an addition to his residence with a direct entrance upon Linwood avenue, which he intends to occupy as a real estate office. The defendants concede that what they are doing constitutes a violation of the building restrictions, but deny that the plaintiffs are entitled to relief for two reasons, first, because of their laches and, second, because of a change in the character of the neighborhood about Linwood avenue, which renders the enforcement of the restriction inequitable at this time. On the hearing the circuit judge entered a decree enjoining the use of the property by defendants, except for residence purposes, and commanded them to remove all signs with the exception of a sign two feet by nine inches with the defendants’ name and occupation thereon. From this decree the defendants have appealed.
The first question presented by the record is whether the plaintiffs are now estopped by reason of laches from complaining of the defendants’ infraction of the restriction. It is the defendants’ claim that Mr. Campbell has conducted a real estate business in his residence since February, 1920, with the knowledge of plaintiffs, but without objection on their part. There is evidence that about two years previous to the beginning of this suit Mr. Kennedy, who had charge of the subdivision for the owner, wrote to Mr. Campbell protesting against the use of these premises for business purposes. Mr. Matthaei, who owns property in the neighborhood, testifies that he talked with Mr. Campbell, but how long before the beginning of suit the record does not show, and that Campbell told him, “the signs were only temporary, that it was not necessary that he should have them, and that the biggest part of his business was done away from there anyway.” We think that as to these signs, the delay in bringing suit has not affected plaintiffs’ right to have them removed. They are temporary in character and easily removable without injury to the building. In fact their removal would be a benefit to the property. It is not business property, but is in a strictly residence district. Originally the signs, few in number, consisted of small blackboards leaning against the front porch of the house. As the business increased the signs increased in number and size. As stated by counsel for the plaintiffs, “the progress of the signs was insidious.” They gradually grew into a stage where, if continued, they would destroy the residential character of the neighborhood and thus subvert the original plan in the development of the subdivision. During the delay in proceeding against the defendants, the plaintiffs were busy in enforcing the restriction as to others. Except as might be indicated by mere lapse of time, there is no evidence that they intended to abandon their right to insist on the enforcement of the restriction as to the defendants. They were not put in any worse position by the delay. If now enforced the delay will have caused them no financial loss. If proceedings had been begun promptly, defendant Campbell would have lost the financial benefit which he has had from the signs during the period of delay. Now his only loss will be the financial benefit which they would be to him in the future, if allowed to continue their use. Delay to assert a right does not in itself constitute laches. It must be accompanied by some prejudice to the adverse party that would make it inequitable to assert the right after a lapse of time. There is no element of that character in this case. The signs are inexpensive and may easily be removed without injury to the premises or financial loss to the defendants. In Kelman v. Singer, 222 Mich. 454, this court said:
“The trial judge viewed the premises and from such view and from the testimony was convinced that the structure was temporary in character. We agree with him. Because of the known character of the structure we think that plaintiffs in suffering it to remain for a period of three years are not barred from right to relief here sought.”
We think the circuit judge was right in holding that the plaintiffs’ delay in bringing this suit does not estop them from maintaining their action for the enforcement of the restriction.
Has the character of the neighborhood so changed that it would now be inequitable to enforce the restriction? The only substantial changes pointed out by counsel for the defendants are not within the subdivision. They are on the' west side of Linwood avenue where stores and business buildings have been erected. No changes of any substantial character have been made in the subdivision. It is still a high-class residential district covered by restrictions of great value to the plaintiffs. The defendants’ claim as to the effect of the changes which have occurred on Linwood avenue is fully answered by Justice SHARPE in Bohm v. Silberstein, 220 Mich. 278, where in a like situation it was said:
“It, in itself, is a residential district in. which homes of considerable value have been constructed. The building restrictions in the deeds have thus far been substantially complied with. The fact that adjoining or surrounding property is now used for business purposes does not alter the character of the subdivision itself and the owners of property therein are entitled to have it preserved for the use for which it must be assumed, they purchased it.”
The defendant Edward J. Campbell is a real estate man. He purchased a residence in this subdivision where he had sold property and knew all about the restriction. He deliberately set about to violate it by converting his residence into a business place. He did it so inartistically that it became an eyesore to the community. He can restore its residential character without any expense. The circuit judge was right in compelling him to do so. By allowing him to retain a sign of the character mentioned in the decree, the circuit judge gave him every advantage that he was entitled to by reason of the delay of the plaintiffs in asserting their right to an observance of the restriction.
The decree is reasonable and is in all respects affirmed, with costs to the plaintiffs.
Clark, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. Bird, J., did not sit. | [
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Bird, J.
Plaintiff sued defendant in assumpsit to recover the balance which he claimed was due him on a bill of sale of certain restaurant fixtures and equipment. Defendant pleaded the general issue and gave notice of a failure of consideration and of fraud and misrepresentation in the sale of the property. The fraud complained of was that a part of the equipment was subject to a chattel mortgage, and another part was subject to a title-retaining contract. The bill of sale was executed on October 27, 1921. The consideration was $3,450. Soon after taking possession defendant discovered the plaintiff did not have a clear title to all the property conveyed to him, and he confronted plaintiff with the fact, and considerable controversy ensued. It finally resulted in making a new agreement in which it was recited that certain misunderstandings had arisen and that certain of the property included was subject to a title-retaining contract, and certain of it was subject to a chattel mortgage. It was, therefore, agreed that defendant should make payment of the amount due on the ice box and fixtures, and that he should have credit for such payments on the original consideration named in the contract, and further that the monthly payments to plaintiff should be suspended until after the aforesaid payments were made; that when paid, defendant’s monthly payments should be reduced from $250 to $200 per month. After the adjustment some payments were made on these items by defendant, but the business was a losing one, and defendant rescinded the agreement and abandoned the entire proposition. This suit followed and the trial resulted in a verdict for the defendant. A large number of assignments arise over the admission and rejection of testimony. One question affecting the merits requires some consideration.
Plaintiff denies that there was any fraud in the making of the first agreement, but he insists if there were any it was waived by the making of the second agreement. We think plaintiff must be sustained in this contention. If we concede that defendant had no knowledge that the refrigerator and other items of equipment were not paid for when the first agreement was made, it is clear that he afterwards learned of it and insisted upon having it corrected, and it was corrected by the second agreement. In that agreement the parties stipulated that defendant might pay the claims against the property and have credit on the account. It seems to us that the execution of the second agreement was a clear waiver of his right to complain of the fraud. Foster v. Rowley, 110 Mich. 63; Hakes v. Thayer, 165 Mich. 485; Bayer v. Winton Motor Car Co., 194 Mich. 233; Draft v. Hesselsweet, 194 Mich. 604; Parkyn v. Ford, 194 Mich. 184; Vernon v. Antona, 222 Mich. 83.
In the first case cited it was said:
“The testimony shows that, just prior to the commencement of this suit, the defendant notified the plaintiff that he would not keep the property, and plaintiff must take it away. This was not done, and defendant, as shown by his own testimony, continued to use it. It was the duty of defendant, as soon as he learned of the misstatement, to rescind the contract; and notice of such rescission must have been promptly given, and adhered to, in order to bind the parties thereto. The continued use of the property for some thirty days after he had learned the facts would be a waiver of the right of rescission, even though notice of such rescission had been given. Hubbardston Lumber Co. v. Bates, 31 Mich. 158; Dunks v. Fuller, 32 Mich. 242; Campau v. Lafferty, 50 Mich. 114; Craig v. Bradley, 26 Mich. 353; Gridley v. Tobacco Co., 71 Mich. 528; Beal v. Congdon, 75 Mich. 77; Dailey v. King, 79 Mich. 568. While the court left the question of rescission to the jury, we think, under the defendant’s own testimony, the court should have instructed them to find a verdict for the plaintiff. We think defendant’s continued use of the property for thirty days after he learned of the alleged fraud amounted to a waiver of any intent to rescind the contract. Marthinson v. Insurance Co., 64 Mich. 384; Cobbs v. Fire Ass’n, 68 Mich. 466; Peninsular Stove Co. v. Osmun, 73 Mich. 570.”
But it is said defendant learned of other articles that were not paid for after the second agreement was made. We find nothing of this character in the record save a small final balance paid by defendant on the cash register. But it is not clear that this item was outside of the second agreement. We think the court should have charged the jury that defendant waived his right to complain of fraud as to those items which were included in the second agreement. It was somewhat difficult for the jury to determine all of the items included in the Jasse account, as Mr. Jasse was not clear about it himself. He was engaged in the business of furnishing a complete outfit for restaurants, and appeared to be of the opinion that the mortgage covered all except the ice box, but was not positive as to this. But even if his lien did not cover the cash register it was a small item, and defendant was in a position to have the amount paid deducted from the consideration in the bill of sale.
The judgment is reversed with a new trial, with costs to plaintiff.
McDonald, C. J., and Clark, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Clark, J.
Plaintiffs held real estate as contract purchasers. Defendant Mary Stanislawski was the vendor. We omit reference to other defendants. Plaintiffs got behind in payments. The vendor brought summary proceedings for possession (3 Comp. Laws 1915, § 13240). At the time fixed, May 8,1922, for hearing before the circuit court commissioner, neither the purchasers nor their counsel appeared. Complainant had judgment. After time for appeal had expired, and about June 27, 1922 (3 Comp. Laws 1915, § 13252), the purchasers moved in the circuit court that they be authorized to bring dilatory appeal (3 Comp. Laws 1915, §§ 13252, 14408), claiming that they had been prevented from taking regular appeal by circumstances not under their control. Supporting the motion were affidavits setting forth such circumstances at length, in substance that after the commencement of the proceeding for possession, after 'the date for hearing had been fixed, and some two or three days before the day, the parties met, attorney for the purchasers also being present, discussed the matter, and agreed to drop the case, and that said vendor assured counsel for the purchasers that he need pay no further attention to the case, and that neither he nor the purchasers need appear on the date set for hearing, and that the purchasers and their counsel did not learn that the vendor fraudulently had taken judgment until nearly three weeks after the entry of the same. Answering the motion the vendor denied that any such agreement or understanding had been made and among the answering affidavits is one by the clerk of the commissioner and one by a deputy clerk of the county,. to the effect that counsel for the purchasers was informed of the judgment when there was yet ample time to appeal regularly. The circuit court, on July 8, 1922, denied the motion, finding against the movers on the merits. The purchasers, in the meantime, had filed this bill of complaint to set aside the judgment because of the claimed fraud as' stated and to restrain restitution of the premises. After answer and hearing, plaintiffs had decree on August 7,1923. Defendants have appealed.
The question is, Has there been former adjudication? We think there has. The matter presented in equity was fully submitted to the circuit court on the motion for dilatory appeal. It passed on the merits and denied another trial. Plaintiffs sought to review by mandamus and were refused by this court. Huddleston v. Charles Amos & Co., 180 Mich. 253. In effect, equity is asked now to grant a new trial on the same grounds.
In principle, the case is ruled by Gray v. Barton, 62 Mich. 186, quoting syllabus:
“Where a defendant in a suit at law made a motion for a new trial, based on the alleged misconduct, drunkenness, and bias of certain jurors, filing affidavits tending to show such alleged facts, which were met by counter-affidavits, and after a full argument the motion was denied by the trial judge, and no application made to the Supreme Court for relief by mandamus,—
“Held, that equity would not grant relief.
“Held, further, that the matter had been litigated upon the merits before the proper tribunal, in a court of law, and that the decision of the trial judge must be considered res judicata as far as that question is concerned.”
See, also, 34 C. J. p. 884; Miller v. Morse, 23 Mich. 365; Cleveland Iron Mining Co. v. Husby, 72 Mich. 61; Kelleher v. Boden, 55 Mich. 295; Valley City Desk Co. v. Insurance Co., 143 Mich. 468; Vincent v. Sherwood, 118 Mich. 64; American Fidelity Co. v. Ginsberg Sons’ Co., 192 Mich. 693.
In Kramer v. Schulte, 154 Mich. 632, a similar case, the precise question was not passed upon.
For the reason stated, the decree is reversed and the bill dismissed, with costs to defendants.
McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Adams, J.
The United States Supreme Court has declared obscenity to be outside the First Amendment guarantee of free speech (Roth v United States, 354 US 476; 77 S Ct 1304; 1 L Ed 2d 1498 [1957]). It has attempted to define what constitutes obscenity. In Memoirs v Massachusetts, 383 US 413, 418; 86 S Ct 975; 16 L Ed 2d 1 (1966), Justice Brennan wrote:
"We defined obscenity in Roth in the following terms: '[W]hether to the average person, applying contempo rary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.’ 354 U.S., at 489. Under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.”
In Jacobellis v Ohio, 378 US 184, 195; 84 S Ct 1676; 12 L Ed 2d 793 (1964), Justice Brennan asserted that the "community standards” test "must be determined on the basis of a national standard.” In Ginzburg v United States, 383 US 463; 86 S Ct 942; 16 L Ed 2d 31 (1966), it was determined that if one "pandered” the material to exploit its sexual content, the material could be deemed obscene regardless of whether it had failed the "utterly without redeeming social value” test mentioned in Memoirs, supra. Justice Brennan described "pandering” as follows (pp 465-466, 467-471):
"In the cases in which this Court has decided obscenity questions since Both, it has regarded the materials as sufficient in themselves for the determination of the question. In the present case, however, the prosecution charged the offense in the context of the circumstances of production, sale, and publicity and assumed that, standing alone, the publications themselves might not be obscene. We agree that the question of obscenity may include consideration of the setting in which the publications were presented as an aid to determining the question of obscenity, and assume without deciding that the prosecution could not have succeeded otherwise. As in Mishkin v New York, post [383 US 502; 86 S Ct 958; 16 L Ed 2d 56 (1966)], p. 502, and as did the courts below, 224 F. Supp., at 134, 338 F. 2d, at 14-15, we view the publications against a background of commercial exploitation of erotica solely for the sake of their prurient appeal. The record in that regard amply supports the decision of the trial judge that the mailing of all three publications offended the statute.
"[T]here was abundant evidence to show that each of the accused publications was originated or sold as stock in trade of the sordid business of pandering — 'the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers.’ EROS early sought mailing privileges from the postmasters of Intercourse and Blue Ball, Pennsylvania. The trial court found the obvious, that these hamlets were chosen only for the value their names would have in furthering petitioners’ efforts to sell their publications on the basis of salacious appeal; the facilities of the post offices were inadequate to handle the anticipated volume of mail, and the privileges were denied. Mailing privileges were then obtained from the postmaster of Middlesex, New Jersey. EROS and Liaison thereafter mailed several million circulars soliciting subscriptions from that post office; over 5,500 copies of the Handbook were mailed.
"The 'leer of the sensualist’ also permeates the advertising for the three publications. The circulars sent for EROS and Liaison stressed the sexual candor of the respective publications, and openly boasted that the publishers would take full advantage of what they regarded as an unrestricted license allowed by law in the expression of sex and sexual matters. The advertising for the Handbook, apparently mailed from New York, consisted almost entirely of a reproduction of the introduction of the book, written by one Dr. Albert Ellis. Although he alludes to the book’s informational value and its putative therapeutic usefulness, his remarks are preoccupied with the book’s sexual imagery. The solicitation was indiscriminate, not limited to those, such as physicians or psychiatrists, who might independently discern the book’s therapeutic worth. Inserted in each advertisement was a slip labeled 'GUARANTEE’ and reading, 'Documentary Books, Inc. unconditionally guarantees full refuncLof the price of THE HOUSEWIFE’S HANDBOOK ON SELECTIVE PROMISCUITY if the book fails to reach you because of U.S. Post Office censorship interference.’ Similar slips appeared in the advertising for EROS and Liaison; they highlighted the gloss petitioners put on the publica tions, eliminating any doubt what the purchaser was being asked to buy.
"This evidence, in our view, was relevant in determining the ultimate question of obscenity and, in the context of this record, serves to resolve all ambiguity and doubt. The deliberate representation of petitioners publications as erotically arousing, for example, stimulated the reader to accept them as prurient; he looks for titillation, not for saving intellectual content. Similarly, such representation would tend to force public confrontation with the potentially offensive aspects of the work; the brazenness of such an appeal heightens the offensiveness of the publications to those who are offended by such material. And the circumstances of presentation and dissemination of material are equally relevant to determining whether social importance claimed for material in the courtroom was, in the circumstances, pretense or reality — whether it was the basis upon which it was traded in the marketplace or a spurious claim for litigation purposes. Where the purveyor’s sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity. Certainly in a prosecution which, as here, does not necessarily imply suppression of the materials involved, the fact that they originate or aré used as a subject of pandering is relevant to the application of the Roth test.”
None of the Supreme Court decisions were signed by a majority of the Justices until Redrup v New York, 386 US 767; 87 S Ct 1414; 18 L Ed 2d 515 (1967). As noted by Justice Harlan in his concurring and dissenting opinion in Ginsberg v New York, 390 US 629, 676, 704-705, 707; 88 S Ct 1274; 20 L Ed 2d 195 (1968):
"The subject of obscenity has produced a variety of views among the members of the Court unmatched in any other course of constitutional adjudication. * * * .
"The upshot of all this divergence in viewpoint is that anyone who undertakes to examine the Court’s decisions since Roth which have held particular material obscene or not obscene would find himself in utter bewilderment.”
In Redrup, supra, obscenity statutes of three different states were involved. In each case the Supreme Court, in a per curiam decision signed by seven of the nine Justices, concluded that the distribution of the material therein involved was "protected by the First and Fourteenth Amendments from governmental suppression, whether criminal or civil, in personam or in rem.” The following statement appears in the per curiam opinion (p 769):
“In none of the cases was there a claim that the statute in question reflected a specific and limited state concern for juveniles. See Prince v Massachusetts, 321 U.S. 158 [64 S Ct 438; 88 L Ed 645 (1944)]; cf. Butler v Michigan, 352 U.S. 380 [77 S Ct 524; 1 L Ed 2d 412 (1957)]. In none was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it. Cf. Breard v Alexandria, 341 U.S. 622 [71 S Ct 920; 95 L Ed 1233 (1951)]; Public Utilities Comm’n v Pollak, 343 U.S. 451 [72 S Ct 813; 96 L Ed 1068 (1952)]. And in none was there evidence of the sort of 'pandering’ which the Court found significant in Ginzburg v United States, 383 U.S. 463.”
Although recognizing that the Court had differ ing views on the tests to determine obscenity, the Court concluded that whatever view was used, the judgments holding the materials to be obscene could not stand. This opinion was signed by Justices Douglas and Black who believed that obscenity was protected by the Constitution (see Roth, supra), Justice Warren who believed "community standards” meant local standards (see Jacobellis, supra), Justice Stewart who believed only "hardcore” pornography was proscribed (see Jacobellis, supra), and Justice White who believed that the "social importance test” was not an independent criteria to determine obscenity (see Memoirs, supra).
Therefore, according to Redrup, before one decides whether material is or is not obscene under the Roth test, one must look to the three tests in Redrup. Unless one of those tests is met, the material, however coarse or vulgar it may lie, is "protected by the First and Fourteenth Amendments from governmental suppression, whether criminal or civil, in personam or in rem. ”
Since Redrup, the United States Supreme Court has reversed some 28 cases on the basis of Redrup. The most significant one in connection with the present cases is Grand Rapids City Attorney v Bloss, 17 Mich App 318 (1969); leave to appeal denied, 383 Mich 754; rev’d sub nom Bloss v Dykema, 398 US 278; 90 S Ct 1727; 26 L Ed 2d 230 (1970). In that case, Judge Charles L. Levin, dissenting in the Court of Appeals, wrote (pp 340, 343-344):
"I am in entire agreement with my colleagues that the seized magazines are vulgar, tawdry and unpleasant. The question before us, however, is not whether these odious magazines are obscene in the ordinary sense of the word — they clearly are — but whether they are obscene in the constitutional sense. The phrase 'obscene in the constitutional sense’ is a term of art coined by the United States Supreme Court and, to the extent it has defined that term, its definition is controlling upon us. Neither my personal opinion nor, I respectfully add, the opinions of my colleagues is relevant where there is a controlling opinion from the United States Supreme Court.
"The United States Supreme Court has undertaken the exposition and control of the development of this area of the law. It has made it very clear that only in extraordinary cases will publications be deemed obscene in the constitutional sense.
"I agree with Judge Danhof that the trial judge clearly erred when he found that there was pandering in this case. The defendant sold these magazines in a bookstore to which no one under the age of 18 is admitted. There is a $1 admission charge, 50(z? of which is credited against any purchase. The defendant also operates an art, adult-only movie theatre. He advertises, on the screen and by displaying the magazines in the theatre lobby, the fact that such publications can be purchased at the bookstore.
"By displaying the magazines themselves without any description of their contents the defendant avoided any characterization, suggestive or otherwise, concerning the nature of the magazines on display. By displaying the magazines in an 'adult-only’ movie theatre the defendant avoided any communication with persons who might regard the sight of such a magazine as an objectionable intrusion. The on-screen advertising of the availability of these magazines and their display in the lobby of such a movie theatre is neither 'pandering’ nor 'obtrusive’ in the sense in which those terms were used in Redrup and Ginzburg v United States (1966), 383 US 463 (86 S Ct 942, 16 L Ed 2d 31).”
The facts in Grand Rapids City Attorney, supra, are the same or similar to those in these cases. In People v Bloss, Kent County Circuit Court File No 11855, an information was filed April 18, 1968, alleging violation of MCLA 750.343a; MSA 28.575(1), by the sale of two allegedly obscene magazines, The Male Swinger and New Horizons. Bloss was the owner of an adult bookstore, the Capri Bookstore and Library, where these two magazines were purchased.
Evidence at a nonjury trial before Judge John T. Letts showed that the Capri Theater, also owned by Bloss, had a display rack of magazines similar to or the same as the publications in question. The sign above this rack stated: "This product is available at the Capri Bookstore and Library at 303 South Division.” An ad shown during the movies also gave this information and a Grand Rapids Press want ad asked for a censor for the bookstore. It was not shown that the want ad gave any description of the material to be inspected.
The trial testimony also showed that the theater lobby, in which these magazines were advertised, was enclosed and not observable to the public from the street. The theater was an adult movie house showing the same type of material as found in the bookstore. Marquee advertisements only gave the names of the current films, as did the movie theater ads in the Grand Rapids Press. No indication was given that magazines would be displayed within the lobby.
The Capri Bookstore and Library was closed to public view by the means of shades. There were no displays in either the windows or the doorway. To enter, one had to be at least 18 years of age and pay an admittance fee of $1. The business name was the only sign outside the store. A policeman bought the two magazines in question. He testified: "My instructions were to go to the store, examine the books and to purchase any that I felt were obscene.”
Judge Letts applied the Roth tests and concluded the material was obscene.
In People v Bloss, Kent County Circuit Court File No 11929, an information was filed May 23, 1968, alleging violation of MCLA 750.343a; MSA 28.575(1), by the sale of 10 books and magazines other than the 2 mentioned in the previous complaint. In a nonjury trial before Judge Letts, it was shown that these books and magazines were purchased in the same manner as in the previous case. The same evidence as to the movie theater and bookstore was introduced.
In this case, the advertising in the theater was held to constitute pandering and the materials in question were determined to be obscene.
In People v Bloss, Kent County Circuit Court File No 11854, an information was also filed April 18, 1968, alleging violation of MCLA 750.343a; MSA 28.575(1), by the sale of two magazines, Galarie 4 DSI and Cover Girl, International Art Magazine, Scandinavia Edition.
The circumstances of sale and the evidence with regard to the theater and bookstore were the same as in the previous two cases. Testimony also showed that Bloss was interviewed on television about his movies and books. The movies were also advertised over radio stations.
No evidence was taken as to the actual content of the television interviews or the radio ads. It was not indicated whether the interviews were news items or advertisements.
In the nonjury trial before Judge Roman J. Snow, the court concluded, since anyone could enter the theater lobby and since Bloss stated on television he was selling the type of material in question at his bookstore, there was pandering. Obscenity was found, relying on both the Roth and Redrup tests.
If we apply the Redrup tests to the facts in these cases, we must conclude, as did Judge Levin, that the United States Supreme Court test for obscenity which is outside the protection of the First Amendment has not been met.
(a) The Involvement of Juveniles Test
The people concede in their brief that "no juveniles were involved in the cases at bar.”
(b) The Thrusting-Off Test
(c) The Pandering Test
These two tests will be discussed together. It will be recalled that in Redrup, supra, 769, the United States Supreme Court said:
"In none was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it.”
The evidence in these cases is clear that the modus operandi of defendant, as found by Judge Levin in Grand Rapids City Attorney, supra, involved no obtrusive publication to an unwilling individual. Since no indication was given that the lobby contained magazines on display, it is hard to imagine who would want to enter an adult movie theater just to view the lobby. Certainly a person who was against the movies being shown would not want to open the door of the theater to view the premises.
There are no circumstances of production, sale, and publicity, of presentation and dissemination, or of open advertising in these cases such as occurred in Ginzburg, supra.
In 1644, John Milton, in Areopagitica, his famous essay directed against the licensing law then in effect in England, wrote:
"We ourselves esteem not of that obedience, or love, or gift, which is of force: God therefore left him free, set before him a provoking object ever almost in his eyes; herein consisted his merit, herein the right of his reward, the praise of his abstinence. Wherefore did he create passions within us, pleasures round about us, but that these rightly tempered are the very ingredients of virtue? They are not skilful considerers of human things, who imagine to remove sin by removing the matter of sin; for, besides that it is a huge heap increasing under the very act of diminishing, though some part of it may for a time be withdrawn from some persons, it cannot from all, in such a universal thing as books are; and when this is done, yet the sin remains entire. Though ye take from a covetous man all his treasure, he has yet one jewel left: ye cannot bereave him of his covetousness. Banish all objects of lust, shut up all youth into the severest discipline that can be exercised in any hermitage, ye cannot make them chaste that came not thither so: * * * .”
The problems of censorship depicted by the poet Milton over 300 years ago exist today. How else explain the performance of the United States Supreme Court from Roth to Redrup? In effect, the Court, in attempting to define obscenity, marched up the hill and then marched down again. It may be that the Justices concluded, as did Milton— better the judgment of the ages than the contem porary judgment of 20 censors. Or it may be that the Court has abandoned the "contemporary standards” test, realizing how ephemeral and fleeting such a standard must be.
I agree with Chief Justice T. M. Kavanagh that there was no necessity in the instant cases for the Court of Appeals "to promulgate a new test, further muddying the waters of the flood of obscenity cases.”
There are serious questions in these three cases as to whether the trial judges did, in fact, apply the correct United States Supreme Court Roth standards. However, it is unnecessary to decide such questions since, in my view, under Redrup, the people did not make out a case.
I vote to reverse and vacate the judgments and to discharge defendant.
T. G. Kavanagh, and Swainson, and Williams, JJ., concurred with Adams, J.
In People vBloss, Kent County Circuit Court File No 11855, Judge Letts had this to say about contemporary community standards:
"If we go to the second one, talking about contemporary community standards, how can we determine what contemporary community standards are by driving from here to New York and forgetting about the Central part of America, or the United States, and the Western part, or driving in the other direction, driving South? The question is, are the standards in New York the same as they are in Tuscaloosa, Alabama? Are the same standards, let’s say in Hell, Michigan, the same as they are in Tupelo, Mississippi, or Reno, Nevada, or Los Angeles? Who is an authority on that sort of thing? Is the Supreme Court an authority? Where do they come from? What is the genus of their existence? Where do they live? What part? Did they live all over the United States? Are they able to say that contemporary community standards are the same all over the United States? I think not, no more than I am able to do so. You drive into San Francisco and look in the window, you might see a magazine like this. You drive into New York, you might see one. You go to Hell, Michigan, and I doubt very seriously that you would see one. You go to Tuscaloosa, Alabama, and I know you won’t see one, nor in many of the states of the South, their opinion of womanhood and manhood being somewhat different, sectionally speaking. So what do they mean when they say: 'contemporary standards’? We interpret it as meaning national standards. Well, what are national standards? I don’t believe there are any, at least as it reflects here, or maybe reflected here in the magazines. Maybe someday we will have a national standard on everything, and when we do I suppose we will become so much alike there will be no need for us to change our abode, or change our way of living when we move into neighborhoods and other areas. Even within the city itself, the contemporary community standards if relegated to a certain place like Kentwood, Plainfield Township, or Bay City, Michigan, all of the standards are different. The court’s standards are different all over the United States. Hardly do you find any two alike. Some have a master calendar, some have a general assignment. Some don’t even have jury trials for civil cases, as in Louisiana. So what are the contemporary community standards? Does Louisiana have to conform to Michigan? Does Michigan have to conform to California? I think not. Certainly contemporary community standards are not the same in Grand Rapids as they are in Amity, Indiana, the home of the Amish.”
In People v Bloss, Kent County Circuit Court Case No 11929, Judge Letts stated: "I do not agree that we apply national standards
In his opinion in People v Bloss, Kent County Circuit Court Pile No 11855, Judge Letts observed:
"So, therefore, it would seem that Roth v United States probably is, or may or may not still be the standard; and Redrup still may or may not be the law, because the Supreme Court has indicated that each individual case will stand or fall upon the facts as they are presented. And whether the law as it has been presented, as it has been compounded or propounded is applicable. In other words, the entire held of obscenity is in a morass, and it is my opinion that each case must be decided upon its own, according to its own values as presented in Court.” (Emphasis added.)
In 1971, with 2 new Justices on the Bench, the Supreme Court issued a majority opinion signed hy 6 of the Justices in United States v Reidel, 402 US 351; 91 S Ct 1410; 28 L Ed 2d 813 (1971). Justice White, writing for the Court, stated (p 357):
"It is urged that there is developing sentiment that adults should have complete freedom to produce, deal in, possess, and consume whatever communicative materials may appeal to them and that the law’s involvement with obscenity should be limited to those situations where children are involved or where it is necessary to prevent imposition on unwilling recipients of whatever age. The concepts involved are said to be so elusive and the laws so inherently unenforceable without extravagant expenditures of time and effort by enforcement officers and the courts that basic reassessment is not only wise but essential. This may prove to be the desirable and eventual legislative course. But if it is, the task of restructuring the obscenity laws lies with those who pass, repeal, and amend statutes and ordinances. Roth and like cases pose no obstacle to such developments.”
Keney v New York, 388 US 440; 87 S Ct 2091; 18 L Ed 2d 1302 (1967); Friedman v New York, 388 US 441; 87 S Ct 2091; 18 L Ed 2d 1303 (1967); Ratner v California, 388 US 442; 87 S Ct 2092; 18 L Ed 2d 1304 (1967); Cobert v New York, 388 US 443; 87 S Ct 2092; 18 L Ed 2d 1305 (1967); Sheperd v New York, 388 US 444; 87 S Ct 2093; 18 L Ed 2d 1306 (1967); Avansino v New York, 388 US 446; 87 S Ct 2093; 18 L Ed 2d 1308 (1967); Aday v United States, 388 US 447; 87 S Ct 2095; 18 L Ed 2d 1309 (1967); Books, Inc v United States, 388 US 449; 87 S Ct 2098; 18 L Ed 2d 1311 (1967); A Quantity of Copies of Books v Kansas, 388 US 452; 87 S Ct 2104; 18 L Ed 2d 1314 (1967); Mazes v Ohio, 388 US 453; 87 S Ct 2105; 18 L Ed 2d 1315 (1967); Schackman v California, 388 US 454; 87 S Ct 2107; 18 L Ed 2d 1316 (1967); Potomac News Co v United States, 389 US 47; 88 S Ct 233; 19 L Ed 2d 46 (1967); Conner v City of Hammond, 389 US 48; 88 S Ct 234; 19 L Ed 2d 47 (1967); Central Magazine Sales, Ltd v United States, 389 US 50; 88 S Ct 235; 19 L Ed 2d 49 (1967); Chance v California, 389 US 89; 88 S Ct 253; 19 L Ed 2d 256 (1967); I. M. Amusement Corp v Ohio, 389 US 573; 88 S Ct 690; 19 L Ed 2d 776 (1968); Robert-Arthur Management Corp v Tennessee, 389 US 578; 88 S Ct 691; 19 L Ed 2d 777 (1968); Childs v Oregon, 401 US 1006; 91 S Ct 1248; 28 L Ed 2d 542 (1971); Felton v Pensacola, 390 US 340; 88 S Ct 1098; 19 L Ed 2d 1220 (1968); Henry v Louisiana, 392 US 655; 88 S Ct 2274; 20 L Ed 2d 1343 (1968); Carlos v New York, 396 US 119; 90 S Ct 395; 24 L Ed 2d 303 (1969); Cain v Kentucky, 397 US 319; 90 S Ct 1110; 25 L Ed 2d 334 (1970); Bloss v Dykema, 398 US 278; 90 S Ct 1727; 26 L Ed 2d 230 (1970); Walker v Ohio, 398 US 434; 90 S Ct 1884; 26 L Ed 2d 385 (1970); Hoyt v Minnesota, 399 US 524; 90 S Ct 2241; 26 L Ed 2d 782 (1970); Bloss v Michigan, 402 US 938; 91 S Ct 1615; 29 L Ed 2d 106 (1971); Burgin v South Carolina, 404 US 806; 92 S Ct 46; 30 L Ed 2d 39 (1971); Hartstein v Missouri, 404 US 988; 92 S Ct 531; 30 L Ed 2d 539 (1971).
In 1953, President Dwight D. Eisenhower said it this way in his Letter on Intellectual Freedom to the American Library Association meeting in annual convention at Los Angeles:
"But we know that freedom cannot be served by the devices of the tyrant. As it is an ancient truth that freedom cannot be legislated into existence, so it is no less obvious that freedom cannot be censored into existence. And any who act as if freedom’s defenses are to be found in suppression and suspicion and fear confess a doctrine that is alien to America.”
Professors William B. Lockhart and Robert C. McClure, writing in 38 Minn L Rev 295 (March, 1954), in an article entitled Literature, The Law of Obscenity, and the Constitution, give this picture of censorship in Detroit in the early 1950’s:
"In Detroit, where the police do their own censoring, the censor bureau’s lists show the same obtuseness to literary values. It is quite apparent that the censor bureau has never accepted the Detroit public library’s offer, to advise it on literary values, for its list of some 150 books declared to be in violation of Michigan law includes such books as James T. Farrell’s A World I Never Made, Ernest Hemingway’s Across the River and Into the Trees, John O’Hara’s The Farmers Hotel, Jan Valtin’s Wintertime, James Warner Bellah’s Ward 20, and Lillian Smith’s Strange Fruit. And its list of partially objectionable books includes Sherwood Anderson’s Dark Laughter, John Dos Passos’ The Forty-Second Parallel, James T. Farrell’s No Star is Lost, Mackinlay Kantor’s Signal Thirty-Two, and Ethel Waters’ His Eye Is on the Sparrow. ”
In Besig v United States, 208 F2d 142 (CA 9, 1953), Henry Miller’s Tropic of Cancer and Tropic of Capricorn were held to be obscene. By contrast, Professor Frederick V. Bernard, testifying as an expert on obscenity for the People in Kent County Circuit Court Case No 11929, stated:
"A. In the last year I have re-read 'The Tropic of Cancer,’ 'The Tropic of Capricorn.’
"Q. Do you take the position those two books are obscene?
"A. I beg pardon?
"Q. Do you take the position that those two books are obscene?
"A. Absolutely not.” | [
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Dethmers, J.
This is a suit in chancery for money decree and, to secure payment thereof, for a lien on a farm which plaintiifs allege defendant Fairman orally agreed to leave them at her death on condition that they live on the premises, put cattle on it, take care of her, and give her 1/3 of the crops during her lifetime. Claiming performance on their part, plaintiffs brought this action after defendant Fairman conveyed the premises to the defendants Robinson and the latter had ousted plaintiffs. From decree for plaintiifs the defendants appeal.
Defendants contend that the oral agreement was not established by a preponderance of the evidence. Plaintiffs testified to the existence of the agreement and defendant Fairman testified to the contrary. Defendants pointed to claimed facts which they urge are consistent with a landlord and tenant relationship rather than with a contractual relationship of the character claimed by plaintiffs. Such alleged facts are that plaintiffs permitted the premises to deteriorate; that they testified' that defendant Fair-man had agreed to furnish materials for repairs, clover seed, and money for payment of taxes; that the farm was operated on shares; that plaintiffs failed to care for defendant Fairman adequately; that plaintiff wife, on the witness stand, referred to the arrangement with defendant Fairman as renting. On the other hand, plaintiffs stress the fact, as did the trial court in its opinion, that their actions during 10 years of occupancy of the farm are inconsistent with mere tenancy for a term and strongly persuasive of the existence of the claimed oral agreement. Plaintiffs’ actions, referred to, consist of their making many improvements to the farm, such as laying a cement floor in the basement of the house they occupied, installing a furnace and stoker, pouring cement footings for and building large timbers into a barn, buying and erecting 200 rods of woven wire fence, planting. frnit trees, replacing and installing windows, et cetera, all at a cost to plaintiffs of some $1,161.50 independent of their labor in connection therewith. Furthermore, plaintiffs bulldozed and leveled a number of acres to make them tillable. They testified they spent $3,150 on that account. Under the circumstances, we cannot say that plaintiffs failed, as defendants put it, to establish the oral agreement by a preponderance of the evidence or, to apply the rule in equity cases, that had we been in the position of the trial court we would have found otherwise than that the oral agreement had been entered into as claimed by plaintiffs.
Defendants claim error in admission of parol evidence to establish an oral .agreement in violation of the statute of frauds. Defendants’ objections- to the testimony were overruled on trial. The defense of the statute must be, but was not, affirmatively pleaded. There is no validity in defendants’ claim that under our holding in Burlage v. Radio Cab Co., 321 Mich 319, they may urge the defense of the statute of frauds on appeal, though not affirmatively pleaded below, on the ground that plaintiffs failed to object below to defendants’ failure to plead the statute. Furthermore, performance on plaintiffs’ part takes the case out of the statute, and this is true as well in a case such as this as in suits for specific performance. See Van Camp v. Van Camp, 291 Mich 688. No question has been raised concerning the propriety of bringing this suit in equity.
Defendants urge that the court erred in allowing plaintiffs damages measured by their expenditures for improvements (except as relates to the bulldozing) rather than the increased value of the premises occasioned thereby, citing Kimmel v. Peach, 240 Mich 697. The rule of that case applies when persons making the improvements are guilty of conduct warranting rescission, by the opposite party, of the contract under which the former are in possession, and perhaps as well in the ease of improvements made by an innocent trespasser or one in possession under mistaken claim of title. The application of that rule would be inequitable indeed in cases, as here, in which a party, in possession under a contract providing for his ultimate acquisition of title from the owner, proceeds, in reliance thereon, to make reasonable improvements, suitable to the premises in question, at a definite cost to himself, only to find himself thereafter the innocent victim of the owner’s breach of the contract and refusal to convey as agreed. In such cases the expense of the improvement should be recovered unless shown to be unreasonable or utterly unadapted to the premises.
Finally, defendants complain that the court should have balanced the equities by .offsetting against the improvements an amount for damages resulting from plaintiffs’ neglect and misuse of the premises. The court did allow plaintiffs only $800 on the $3,150 bulldozing item which the court considered unreasonable and in .excess of any benefits to the extent that “it shocks one’s sensibilities.” Defendants showed that the premises had deteriorated during 10 years of possession by plaintiffs, but the latter testified that this was in a large part due to defendant Fairman’s failure to furnish materials for repairs as agreed. There was no testimony which rose to the dignity of actual proof of the amount of such damages in dollars and cents, merely a guess hazarded by one of the witnesses without any pretense of itemizing, delineating or particularizing the same.
Affirmed, with costs to plaintiffs.
Butzel, Carr, Bushnell, Sharpe, Boyles, and Reid, J J., concurred.
The late Chief Justice North did not sit.
See CL 1948, § 566.106 (Stat Ann § 26.906) .—Reporter.
See Court Rule No 23, g 3 (1945).—Reporter.
See CL 1948, § 566.110 (Stat Ann § 26.910).—Reporter. | [
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Boyles, J.
Plaintiff, as the purchaser of a tavern business and equipment operating under a class C liquor license in Muskegon, filed a bill of complaint in chancery against the vendor, for an accounting. The circuit judge, hearing the matter on the pleadings and some testimony taken in open court, entered a decree allowing the defendant to credit himself with the sum of $1,500 for salary of himself and wife in conducting the business, and $500 for the annual liquor license. From the allowance of these two items as a credit to the defendant on the accounting, the plaintiff appeals.
In January, 1946, the defendant and plaintiff entered into a written agreement giving plaintiff an option until May 1st to purchase the defendant’s tavern property and business for $26,000. On April 25th, plaintiff notified the defendant in writing that he was exercising his option and that he was ready to comply with its terms and conditions. The defendant refused to comply. In the meantime, the plaintiff had procured a lease from the owner of the land and building occupied by the tavern, for a three-year term with an option of 2 additional years. The defendant was occupying the premises on a month-to-month basis. In July, based on said lease the plaintiff secured a judgment for possession in proceedings before a circuit court commissioner, whereupon the defendant moved out of the premises in July, leaving an empty building. This situation called for further negotiations, resulting in a written agreement between the parties for purchase and sale of said tavern and business, executed August 5, 1946. By it tbe defendant sold plaintiff tbe tavern business, equipment and agreed to transfer tbe liquor license, for $26,000, plus tbe cost of certain alcoholic beverages inventoried. The agreement provided that the purchase price was “to be paid in the following manner by the buyer: The amount of net profit of said business to be determined from the books of the business, since the 1st day of May, 1946, to the present time, is to be deducted from said amount, the balance thereof to be paid $10,000 upon the execution of this agreement and the balance in monthly instalments of $500, or more, per month.”
The dispute arises over a difference of opinion as to how much should be deducted from the amount which plaintiff was to pay for the business — in other words, what was “the amount of net profit of said business” since May 1st, which under the agreement inured to the benefit of the plaintiff on the purchase price. The agreement obviously contemplated that this “net profit,” which the defendant then held, should be accounted for by the defendant and that the amount thereof be credited to the plaintiff on his purchase price.
The agreement provided that the aforesaid net profit of said business “be determined from the books of the business.” Notwithstanding the fact that the defendant had made no entry on the books of any item of salary for himself or his wife, on the accounting he claimed, and the trial court allowed him as a part of the expenses of the business, the sum of $1,500 as salary for himself and his wife. It was shown that at no time, either before or after May 1st, had the defendant shown on the books of the business any withdrawal or claim of any salary either for himself or his wife. The defendant testified that he had operated the business about 5 years before he sold it to the plaintiff, that “I never paid myself each, week for operating the bar. I never took out a salary.” There was no understanding between plaintiff and defendant that the defendant was to have a salary for himself and his wife, as a part of the expense after. May 1st. The salary claimed by the defendant for his wife, as stated in his answer, was:
“That during the months of May, June, and July,, defendant’s wife was employed in said tavern cashing checks on certain days for customers at a salary of $25 per week, which item should be deducted.”
In their written agreement of August 5th, the parties agreed that the amount of the net profit was to be determined from the books of the business. We cannot read such a provision out of the contract. Had the parties contemplated the allowance of any salary for the defendant and his wife while defendant was in possession after May 1st, as owner of the business, it would have been a simple matter to have included it in the agreement. The defendant should not have been credited in the accounting with the claimed sum of $1,500.
Appellant also contends that the defendant should not be allowed to add as an expense, to be deducted from the net profits, the $500 paid by him for the liquor license for the year beginning May 1st. The plaintiff claims that the cost should be prorated, one twelfth allocated to each month, and that he should be charged only for 3 months — $125. The entire cost of the liquor license, under the agreement of August 5th, inured to the benefit of the plaintiff. Without the license, the tavern could not have been operated during May, June and July, during which time the net profits of the business were, in effect, a benefit to the plaintiff by a deduction from the purchase price he was to pay. The cost of the license for the remaining 9 months also inured to plaintiff’s bene fit, if fie were to operate tfie tavern. Tfie agreement provided that if transfer of tfie license to plaintiff should not be effected, tfie deal was off. Under tfie circumstances, tfie defendant was properly allowed by tfie trial court tfiis item of $500 as a necessary expense.
A decree may be entered in tbis Court in accordance herewith, with costs to appellant. Appellee has not filed a brief in tbis. Court.
Sharpe, C. J., and Bushnell, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Butzel, J.
Marian Urick, claimant and appellee, was summarily discharged on April 22, 1947, by the Stainless Ware Company of America, her employer and appellant herein, hereinafter referred to as the employer. The claimant applied for unemployment compensation after her discharge. The employer-contended she was discharged because of misconduct, connected with her work and therefore disqualified for benefits under the unemployment compensation act for the duration of her unemployment following-her discharge. The defendant Michigan unemployment compensation commission upheld the employer’s contentions and denied her compensation. Claimant then asked for a hearing before a referee, who after the hearing reversed the board and awarded her benefits under the act. The finding of the referee was reversed by the defendant appeal board of the Michigan unemployment compensation commission, which held that claimant had solicited on the employer’s property in violation of the “reasonable” rule of the employer and, therefore, was discharged for misconduct connected with her work within the meaning of the pertinent provisions of the-act. Claimant then appealed by writ of certiorari to-the. circuit court for the county of Oakland and the' circuit judge held that claimant was entitled to unemployment compensation, reversing the finding of the appeal board on the ground that there was no> solicitation shown. The CIO represented the claimant. The employer was permitted to intervene and has appealed.
At the hearing before the referee the following-facts were shown. The employer employs approximately 200 persons, some of whom come from neighboring farms. For some time past, the employer had attempted to stop solicitation by its employees on company property of sales of farm products, needlework, subscriptions to flower funds, et cetera. On April 9,1947, it had posted, in prominent places in its plant, notices stating that in accordance with a long-standing policy soliciting- of any kind was forbidden at any time on company property and violation of this rule would result in immediate discharge. Claimant was familiar with this notice. Claimant, shortly before her discharge, had attended a union meeting and was interested in organizing her fellow employees. The employer did not recognize any union as a bargaining agent, and evidently wanted to keep its employees from joining a union. Claimant further claimed that she had been assured by a representative of.the national labor relations hoard that she could give out union cards during her free or lunch time, but to restrict it to such time. At the hearing claimant admitted thát she had solicited union memberships during her lunch hour, but not during working hours. However, the following incident alone brought about her discharge. This is not controverted. It was stated by her as follows:
“On this April the 22d, I was in the cafeteria, sitting at the lunch table, Ethel Waddenstorer was sitting at the same table I was. I was on my lunch hour. The conversation was just general, and she asked me how the union was coming along — she knew I was a member — and I said, We are doing all right.’ She said, ‘I guess we will all have to join sooner or later,’ and I asked, What do you mean by that?’ and she said — well, I just can’t tell you the exact words, I don’t know, but anyway she said I could give her a card, so I gave her this card. I don’t know if anyone saw me give her this card. It was before the whistle blew.”
Immediately after the lunch hour she was discharged for violation of the rule against soliciting.
The employer in its appeal contends that claimant-was discharged for cause. It stresses the provisions of the law that the circuit court may reverse the appeal board upon a question of fact only if such finding by the appeal board is contrary to the great weight of the evidence. CL 1948, § 421.38 (Stat Ann 1947 Cum Supp § 17.540). Also, see Godsol v. Unemployment Compensation Commission, 302 Mich 652 (142 ALR 910).
The sole violation for which claimant was discharged, as heretofore quoted, did not show any solicitation. A natural conversation took place during the noon hour, and another employee, not claimant, asked for a union card. The appeal board erroneously held that claimant did the soliciting. If' what was done can even be regarded as soliciting, claimant might be termed the “solicitee” not the-“solicitor.” The great weight of the testimony did not support the finding of the appeal board. As the-circuit judge stated in his opinion:
“What is the meaning of ‘soliciting?’ According” to Webster’s Collegiate Dictionary, the word ‘solicit” is defined ‘to entreat, importune, to plead for, to-tempt, beseech, crave, implore.’ After analysis of the testimony above quoted, if any soliciting was-done, it was clone by Ethel Waddenstorer and not the appellant. In view of the testimony, there is no possible manner in which the appellant could be construed as the aggressor, or in any way complying with Webster’s definition of ‘solicit.’ ”
Claimant also relies on the Taft-Hartley act (labor managenment relations act of 1947) which contains similar provisions to those in the national labor; relations act, that are pertinent to the case before us, and which have been passed on by the United States supreme court. In Republic Aviation Corp. v. National Labor Relations Board, 324 US 793 (65 S Ct 982, 89 L ed 1372, 157 ALR 1081), the court in affirming the board in upholding the right of an employee to solicit union membership outside of working hours, but on company property, quoted with approval the statement of the national labor relations board as follows:
“The board has held that, while it was ‘within the province of an employer to promulgate and enforce a rule prohibiting union solicitation during working hours,’ it was not ‘within the province of an employer to promulgate and enforce a rule prohibiting union solicitation by an employee outside of working hours, although on company property,’ the latter restriction being deemed an unreasonable impediment to the exercise of the right of self-organization.”
The judgment of the circuit court is affirmed, with costs to the appellee against the appellant.
Sharpe, C. J., and Bushnell, Boyles, Reid, North, Dethmers, and Carr, JJ., concurred. | [
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Boyles, J.
This petitioner, now confined in the State prison for southern Michigan in Jackson county, seeks habeas corpus and ancillary certiorari to obtain his release from su'ch prison. He was arrested on a warrant charging breaking and entering in the-nighttime at Elk Rapids, in Antrim county, on September 16, 1946, and had an examination before a magistrate in that county resulting in being bound over to the circuit court for said county for trial. The prosecuting attorney filed an information in the Antrim county circuit court charging said offense, and also filed an information charging petitioner as a second offender under the habitual criminal act, alleging a prior conviction in Kent county for robbery armed. One Lundberg signed a written confession that he and this petitioner together had broken into and entered 8 buildings in northern Michigan and above the Straits while on an alleged fishing trip which started September 13th and ended September 15th or 16th by their breaking into and entering a garage in Elk Rapids, Antrim county, with intent to commit larceny as alleged in the information filed. Petitioner signed an appended written statement in the presence of a captain of the State police and 2 of petitioner’s relatives, agreeing to the truthfulness of Lundberg’s confession, after having read it; adding that he had carried a loaded gun into the jail where he was then confined and concealed it under his pillow. On September .26, 1946, he was arraigned on said charge of breaking and entering,' at a special session of the circuit court in'Grand Traverse county, in the same judicial circuit with Antrim county. The record returned to us in response to our writ of certiorari to the circuit court contains a full trans-script of what occurred at said arraignment. It shows that he stated that he understood" the charge, that there was nothing in connection with it that he desired to have explained to him by counsel or anyone else before he entered a plea, that there was no one he wished to talk to concerning his rights before pleading, that he fully understood the charge and its seriousness, and that thereafter he pleaded guilty. He admitted in open court that he and Lundberg were together when the crime was committed and, in answer to questions by the court, detailed the circumstances of the breaking and entering, admitted that they stole 6 tires from the garage, and also gave, in detail, the circumstances of his arrest immediately afterward by officers who (he said) were “a bit too hot” on his trail. He said that he was 26 years old, that there was nothing he cared to discuss privately with the court, admitted he was on parole from Kent county at the time, said in open court that no promises, inducements or threats, had been made to him, and admitted his previous conviction and sentence for robbery armed and his unexpired parole. The court thereupon accepted his plea of guilty to the charge of breaking and entering in Antrim county and then he was arraigned on the supplemental information under the habitual criminal act. It was read in open court by the prosecutor and, in answer to questions, petitioner said he understood the law applying to the supplemental information, admitted his previous arrest, conviction and sentence for the felony therein described, that he was the same person therein described, admitted his conviction in Kent county for robbery armed, was advised by the court that he was entitled-to the advice of counsel or anyone else he desired to talk to, and he said he did not desire it, or to talk to anyone. The court explained he was entitled to have a trial before a jury, petitioner said that he understood that, and did not desire it, and thereupon he pleaded guilty to the supplemental information. He admitted he understood that it was the court’s duty to sentence him under the habitual criminal law as a second offender, that the penalty would be greater than for a first offense, that no promises or inducements had been made to him by any police officer or anyone else to influence his action, again affirmed his previous statements as to the truth, of the written confession made by Lundberg, said that all the statements therein were true, whereupon the court accepted his plea of guilty under the supplemental information. Later in the same day, after again admitting in open court the truth of the statements that he had previously made, including affirming the truth of the confession by Lundberg, he was sentenced to be confined in the southern Michigan prison for not less than 15 nor more than 22 1/2 years. These proceedings took place at a special session in open court in Grand Traverse county as hereinbefore noted.
The return to our writ of certiorari shows that on September 26, 1946, the circuit judge for said judicial district presided over said special session of the circuit court at Traverse City, in Grand Traverse county, which was in the same judicial circuit with Antrim county, that the .proceedings hereinbefore detailed were had before the circuit judge of said judicial circuit in Grand. Traverse county and that said circuit judge there accepted petitioner’s pleas of guilty and imposed the sentence. The transcript also shows that on January 5, 1950, the sentencing judge had denied his petition filed in the circuit court for Antrim county for habeas corpus and also for leave to file a motion for a new trial.
Petitioner now seeks release on the ground that said proceedings were had before the circuit judge of said judicial circuit in Grand Traverse county, instead of in Antrim county where the offense was committed. The court had statutory jurisdiction to hold such proceedings in Grand Traverse county to hold the arraignment and accept the pleas of guilty and impose sentence there, acting in a special session of the court in Grand Traverse county, said judicial circuit then consisting of more than 3 counties. CL 1948, § 691.231 (Stat Ann § 27.561); In re Joslin, ante, 627.
The other grounds on which petitioner seeks release on habeas corpus are that following his arrest he was held incommunicado, threatened with being charged with being a fourth offender, promised leniency, not informed of his rights, denied counsel or having been informed that he was entitled to a jury trial. The only proof presented by petitioner to support these claims rests in his own allegations, supported only by his ambiguous affidavit in which he states that he had “checked and examined the records and files of this cause, * * * upon the showings of said examination that he believes the foregoing petition, by him submitted, to be good and meritorious,” and “that the notarization of this, his affidavit in support of his petition for writ of habeas corpus, shall also stand for and cover, his affidavit of proof of filing praecipe, affidavit of acl subjiciendum, affidavit of proof of service, statement of facts and all the documents of this cause.” His barren unsupported assertions are refuted by the affidavits of a captain and a sergeant of the State police who were present, personally familiar with the entire circumstances surrounding petitioner’s arrest, detention, confession, and pleas of guilty in open court, which show in detail what was said and what occurred, and fully refute petitioner’s charges; which affidavits appear in the record as a part of the answer filed here to this petition for habeas corpus. In addition, the record certified here in response to certiorari contains a transcript of the entire proceedings in open court. It shows that petitioner was not held incommunicado but, on the contrary, was allowed visitation by 2 of his relatives, who were present at the time he freely admitted the truth of Lundberg’s confession and made his own additions thereto.
We might well rely solely on the well-established law that habeas corpus will not be allowed to function as a writ of error, and that petitioner’s remedy would be to file here an application for leave to appeal from the denial of his motion filed in the trial court to vacate his sentence and for a new trial. See In re Joslin, supra. However, we have carefully examined the entire record submitted here and find no support in fact or law for petitioner’s alleged grounds on which he bases his petition here for release.
The petition is denied and the writ dismissed.
Dethmers, Butzel, Carr, Bushnell, Sharpe, and Reid, JJ., concurred.
The late Chief Justice North did not sit.
See CL 1948, § 750.110 (Stat Aim § 28.305).—Reporter.
See CL 1948, § 769.10 ei seq. (Stat Ann § 28.1082 et seq.).—Reporter. . | [
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North, J.
Plaintiffs or their assignors were holders of preferred stock in the Occidental Hotel Company, a Delaware corporation authorized to do business in Michigan. It owned and operated a hotel in Muskegon. It had no other business. In 1943, this corporation consolidated, with another Delaware corporation, and incident to such consolidation the rights of plaintiffs as holders of preferred stock were materially affected. The new Occidental Hotel Company assumed the liabilities and obligations of the original or óld Occidental Hotel Company. By their suits, which were transferred to the equity side of the court, plaintiffs seek redemption of their preferred stock and payment of past due accumulated dividends as of December 31,1940. The 2 suits were consolidated for trial and are here on a single record. After hearing on the merits decrees were entered in the circuit court dismissing plaintiffs’ bills of complaint. They have appealed.
The original Occidental Hotel Company in which plaintiffs or their assignors held preferred stock had its principal office in Wilmington, Delaware. It operated its hotel in Muskegon at a loss prior to 1942. At the 1942 annual stockholders’ meeting the directors “were instructed to prepare a suitable plan for the reorganization of the financial structure of the company.” As part of the plan adopted for reorganization, the Occidental Hotel, Inc., with an authorized capital stock of $1,000 was incorporated under the Delaware law. The directors of this new corporation, which was a wholly owned subsidiary of the old corporation, and the directors of the original Occidental Hotel Company entered into an agreement for consolidation of the two corporate bodies. The details of the plan for reorganization were submitted at the stockholders’ annual meeting held in January, 1943. Thereafter and in April, 1943, a special meeting of the original Occidental Hotel Company stockholders was held for the purpose of ratifying or rejecting the proposed plan of consolidation. By the required statutory vote of the stockholders the plan was adopted; but the assignors of plaintiff Dratz voted against the adoption of the consolidation plan. At a stockholders’ meeting of the newly-organized Occidental Hotel, Inc., the plan of consolidation was also approved. It is agreed by counsel that the consolidation was perfected in compliance with the law of Delaware, which we quote in part:
“Sec. 59A. * * * The parent corporation (upon consolidation) shall be deemed to have assumed all the liabilities and obligations of the merged corporation, and shall be liable in the same manner as if it had itself incurred such liabilities and obligations.” 41 Del Laws (1937), ch 131, § 2.
“Sec. 61. If any stockholder in any corporation of this State consolidating or merging as aforesaid, who objected thereto in writing and whose shares were not voted in favor of such consolidation or merger, and who filed such written objection with the corporation before the taking of the vote on such consolidation or merger, shall within 20 days after the date on which the agreement of consolidation or merger has been filed and recorded; as aforesaid, demand in writing, from the corporation resulting from or surviving such consolidation or merger, payment for his stock, such resulting or surviving corporation shall, within 30 days after the expiration of said period of 20 days, pay to him the value of his stock on the date of the recording of said agreement of consolidation or merger, exclusive of any element of value arising from the expectation or accomplishment of such consolidation or merger.” 44 Del Laws (1943), ch 125, § 6.
Appellants as stockholders in a corporation organized under Delaware law did not comply with the statute which requires that within the time limited demand be made in writing for payment of “the value of his stock.” Hence appellants are not entitled to recover under the quoted provision of the Delaware statute.
However, appellants do urge right of relief op a wholly different theory. They assert that their rights as preferred stockholders in the original Occidental Hotel Company, who did not consent to the consolidation, to have “their shares redeemed at the date fixed therefor” in the stock certificates were not “destroyed” by the merger or consolidation above noted. They state in their brief:
“The defendant became and is liable to redeem the shares of preferred stock of the original Occidental Hotel Company now standing in the names of the plaintiffs by paying to them the par value ($100 per share) thereof, and the amount of the accumulated unpaid dividends ($66.50 per share) thereon, with interest at the rate of seven per cent, per annum from the date of the maturity (December 31, 1940) of the shares. * * * , . :
“The right of á holder of preferred stock to have his shares redeemed at the date fixed by the certificate of stock is a valuable, vested property right which cannot be destroyed by a State statute authorizing the merger of corporations.”
On this phase of the controversy defendant’s brief .contains the following:
“Counsel for plaintiffs has argued at considerable length that ‘the right of a holder of preferred stock to have his shares redeemed at the date fixed by the certificate of stock is a valuable, vested property right which could not be destroyed by a State statute 'authorizing the merger of corporation.’ In making this contention counsel has entirely lost sight of the fact that both the articles of association of the original Occidental Hotel Company and the preferred .stock certificates of that company provided that ‘the preferred stock shall be subject to redemption at par on the 31st day of December, 1940.’ There can be no argument but that this language gave to the holder of the preferred stock the option to demand that his stock be redeemed at par plus any accumulated dividends on and after December 31, 1940, subject to the rights of existing creditors of the corporation. The corporation itself also had the right at that time to pay to the preferred stockholder the par value of his stock plus any accumulated dividends and to demand the surrender of such stock. Neither the stockholders involved in this case nor the corporation ever exercised such right.”
In view of the foregoing our decision herein must be made in the light of the assumption, as admitted by defendant both in its answer setting up an affirmative defense and in its brief, that as of December 31,1940, plaintiffs herein had the “option to demand” redemption at par value of their preferred stock holdings and payment of accumulated unpaid dividends at the rate of 7 per cent, per annum thereon, subject however to the rights of the corporation’s creditors. But defendant’s concession that preferred stockholders had the “option to demand” redemption is not an admission of plaintiffs’ contention that tió'twithstanding they did not exercise their optional right of redemption at least until a demand was made a week prior to the time this suit was started in June, 1946, nevertheless on December 31, 1940, they became vested with and now possess a contractual right enforceable against the new corporation to have their stock redeemed at par and payment of accrued dividends. This contention of plaintiffs is denied in paragraph 6 of defendant’s answer, and we think the contention is not maintainable. In asserting the above claimed right plaintiffs rely upon the provision embodied in the articles of incorporation and also in the certificates of preferred-stock of the original Occidental Hotel Company, which reads as follows:
“The holders of the preferred stock in the company, under the provisions of the articles of association, to which reference is hereby made, shall be entitled to receive, from the net profits of the company, annual dividends at the rate of 7 per cent., payable in semiannual instalments, on the first days of May and November in each year, which said dividends shall be cumulative and payable before any dividend shall be set apart or paid on the common stock. * * *
“The preferred stock shall be subject to redemption at par on the 31st day of December, 1940, and said stock or any portion thereof shall be subject to redemption on the call of the board of directors upon any dividend day hereafter at a premium of 5 per cent, above par and the accrued dividends; the board of directors to have the right to select the stock to be redeemed and to give 30 days notice to the holders of the stock so selected.”
The controlling provision of the above quotation is that “the preferred stock shall be subject to re- demotion at par on the 31st day of December, 1940.” In its context obviously it means and only means .that the corporation on the date fixed might redeem the stock at par, but if the corporation elected to redeem the stock at an earlier date it would be “at a premium of 5 per cent, above par and the accrued dividends.” The quoted provision did not bind the corporation to redeem the stock on the date specified, as it would have been bound by a provision in the stock certificates that the “preferred stock shall be redeemed at par” on a fixed date, or words to that effect.
“A corporation is not, however, bound to retire stock if the agreement therefor merely reserves an option which has not been exercised. * * * It has also been held, however, that the corporation is not bound to redeem stock out of its capital, but only out of its other assets.” 13 Am Jur, pp 396, 397. See, also, Coggeshall v. Georgia Land & Investment Co., 14 Ga App 637 (82 SE 156). Also, as to being somewhat in this field of the law, see Sutton v. Globe Knitting Works, 276 Mich 200 (105 ALR 1447); Vanden Bosch v. Michigan Trust Co. (CCA), 35 F2d 643.
Counsel for plaintiffs, in support of their contention that they possessed an enforceable contractual right to have their stock redeemed, relies upon our decision in Affeldt v. Dudley Paper Co., 306 Mich 39. But the facts in that case in material respects are distinguishable from those in the instant case and were controlling of decision in the cited case. Among other facts Justice Butzel, who wrote for the Court, pointed out “that the statute * * * in force at the time plaintiff’s certificate was authorized required the corporation to fix a date on which it would be obligated to redeem its preferred stock.” And the opinion further points out that both the cor poration and the stockholder had construed the provision in the certificate of stock on which suit was brought as vesting the stockholder with the absolute right of redemption at par on the date fixed. These and other circumstances noted in the opinion clearly render decision in the Affeldt Case inapplicable to the instant case.
Nor is the admission in defendant’s brief that “the holder of the preferred stock (had) the option to demand that his stock be redeemed,” an admission that defendant or its predecessor was obligated to redeem the stock on the- date specified in the absence of the exercise of the option. There is no claim that plaintiffs or their assignors asserted this optional right until more than 3 years after the consolidation of the 2 corporations in April, 1943; and, in our opinion, if not asserted prior to the time of the consummation of the consolidation it could not, under the law of Delaware, be thereafter asserted against the new or resulting corporation. Until consolidation plaintiffs or their assignors continued in their status as stockholders in the original hotel corporation. Because of their patent applicability to the instant case we quote quite at length from the headnotes in Federal United Corp. v. Havender, 24 Del Ch 318 (11 A2d 331):
“The substantial elements of merger and consolidation provisions of General Corporation Law are written into every corporate charter, and a shareholder has notice that corporation whose shares he has acquired may be merged with another corporation if required majority of shareholders agree, and is informed that merger agreement may prescribe the terms and conditions of merger and the mode of carrying it into effect and may ‘convert,’ which means to alter in form, substance, or quality, shares of the constituent corporation into shares of the resulting corporation. Bevised Code 1935, §§ 2091,- 2092, 2093, and § 2091A, as added by 41 Del Laws (1937), ch 131, § 2.
“Holders of preference stock are held to know that dividends may accnmnlate on preference stock and that in event of a merger of the corporation issuing the stock with another corporation the various rights of shareholders, including the right to dividends on preferred stock accrued but unpaid, may be the subject of reconcilement and adjustment. Revised Code 1935, §§ 2091, 2092, 2093, and § 2091A, as added by 41 Del Laws (1937), ch 131, § 2.
“The statutes permitting merger of corporations cannot be given a narrow or technical construction if they are to accomplish the purpose of conserving and promoting corporate interests for which they were enacted. Revised Code 1935, §§ 2091, 2092, 2093, and § 2091A, as added by 41 Del Laws (1937), ch 131, § 2.
“A holder of cumulative preferred stock as to which dividends have accumulated cannot insist that his right to the dividends is a fixed contractual right in the nature of a ‘debt’ in that sense vested, and therefore secure against attack on merger of corporation pursuant to statute, since shareholders by virtue of stock ownership have notice that corporation may be merged under the statute. Revised Code 1935, §§ 2091, 2092, 2093, and § 2091A, as added by 4l Del Laws (1937), ch 131, § 2.”
To the same effect see Langfelder v. Universal Laboratories, Inc. (CCA), 163 F2d 804. In the light of the Delaware law as declared in the above cases, plaintiffs’ contention cannot be sustained wherein they assert a right to have redemption of their stock and payment of accrued dividends by the defendant corporation under the following provision of the Delaware corporation law:
“The liability of corporations created under this chapter, or existing under the laws of this State, or the stockholders or officers thereof, or the rights or remedies of the creditors thereof, or of persons doing or transacting business with such corporation, shall not in any way be lessened or impaired by the sale thereof, or by the increase or decrease in the capital stock of any such corporation, or by the consolidation or merger of 2 or more corporations or by any change or amendment in the articles of incorporation.” Revised Code of Delaware 1935, § 2095 (Ch 65, § 63).
The above statutory provision obviously pertains to liabilities of stockholders and to “the rights or remedies of creditors.” But, as pointed out in the Havender Case, preferred stockholders are not creditors within the statutory use or meaning of that word. Another headnote of the Havender Case, supra, reads:
“A holder of preference shares as to which dividends have accumulated through time is not a ‘creditor’ of the corporation in the ordinary meaning of the word, nor is he the holder of a ‘lien’ as that word is usually understood within the meaning of proviso of statute relating to merger of corporation providing that all rights of creditors and all liens upon any property of a constituent corporation shall be preserved and all debts, liabilities, and duties of constituent corporations shall attach to resulting corporation on merger. Revised Code 1935, § 2092.”
It must be noted that by express provisions plaintiffs’ stock certificates provided only for payment of dividends “from the net profits of the company.” But there were no net profits as of December 31, 1940, nor at any time thereafter prior to the consummation of the consolidation. Under circumstances disclosed in this record plaintiffs’ contention that by the terms of their preferred stock holdings they had a vested right as of December 31, 1940, to have their stock redeemed and to be paid accumulated dividends thereon cannot be sustained. To have redeemed plaintiffs’ stock totalling $8,400 and paid accrued dividends amounting to $5,586 on December 31, 1940, would have worked impairment of tbe corporation’s capital and possibly an impairment of rights of its then creditors.
But entirely apart from the foregoing, plaintiffs assert a right to recover on the theory that the reorganization or consolidation was “solely for the purpose of attempting to enable the original Occidental Hotel Company to defeat its obligation to holders of the preferred capital stock of such corporation and to improve the position of the common stockholders of said corporation at the expense of the above named persons (plaintiffs) and other preferred stockholders of said corporation; and that the proceeding whereby the defendant corporation was formed was a mere sham and subterfuge.” And in their brief plaintiffs contend that as to them the merger was void because it “was unfair, inequitable, unjust and fraudulent as to the preferred stockholders of the original Occidental Hotel Company.”
Consideration of this phase of the instant case necessitates a further statement of the facts and circumstances with which the original Occidental Hotel Company and its stockholders were confronted at the time the consolidation was being considered and finally consummated in April, 1943. But first it may be noted that appellants admit there are holdings in adjudicated cases “that under the law of Delaware a parent corporation may merge with a wholly-owned, inactive subsidiary, cancelling old preferred stock and the rights of the holders thereof to unpaid accumulated dividends, and that they go so far as to hold that this may be done even though the subsidiary was created for that very purpose.” In accord with the foregoing the following cases are noted in appellants’ brief: Federal United Corp. v. Havender, supra; Hottenstein v. York Ice Machinery Corp. (CCA), 136 F2d 944; Langfelder v. Universal Laboratories, Inc., supra.
But in connection with the foregoing plaintiffs point out that: “The Delaware decisions recognize, however, that the exercise of the statutory right of merger is always subject to nullification for fraud, and that the allocation of equities in the surviving corporation between the old preferred and common stockholders may be so unfair as to amount to constructive fraud.” Citing Porges v. Vadsco Sales Corporation (Del Ch 1943), 32 A2d 148; Cole v. National Cash Credit Association, 18 Del Ch 47, 56 (156 A183,187) ; MacFarlane v. North American Cement Corp., 16 Del Ch 172 (157 A 396). Hence we have the issue of whether the instant consolidation was such that it should be held fraudulent as to plaintiffs and therefore void as to them.
As just above noted, in addition to the facts previously set forth, the following facts are pertinent to this phase of the case. The original Occidental Hotel Company, organized under Delaware law in 1919, had an authorized capital stock of $700,000. This consisted of 6,000 shares of preferred stock with par value of $100 per share and 1,000 shares of common stock of like par value. All of the common stock was issued, and at the time of the consolidation there were outstanding approximately 5,720 shares of the preferred stock. Of this preferred stock plaintiffs herein held 84 shares. Prior to the consolidation no dividends were paid on any of its stock by the original Occidental Hotel Company subsequent to May 1,1931; and the corporation had been operating its hotel at a loss. Its balance sheet, without considering accumulated unpaid dividends or depreciation for 1941, disclosed that as of November 30, 1941, the company’s capital was impaired in the •sum of approximately $7,000. Without considering unpaid dividends, the earned surplus accounts for the years 1936 to 1942, when the matter of consolidation was first contemplated, disclosed a loss at the end of each fiscal year varying in amount from $40,000.54 in. 1936 to $13,437.93 in 1942. During 1943, the merger having been consummated in April of that year, the corporation made a profit of $66,580.-72. This resulted in the earned surplus account for the year 1943 showing a profit of $53,142.79. Thereafter for the 4 succeeding years the new Occidental Hotel Company operated at a substantial annual profit. Holders of common stock in November, 1946, made sales of stock greatly in excess of par value, and all preferred stockholders in the new company were given an opportunity to sell at par plus unpaid dividends on the date just above noted.
The new Occidental Hotel Company was organized with an authorized stock of 4,000 shares, 3,000 preferred stock par value $100, and 1,000 common stock par value $50. The preferred stock entitled the holder to yearly noncumulative dividends of 5 percent. payable semiannually. Dividends could not be paid on the common stock in' any year until all current mortgage obligations, interest on debentures- and 5 per cent, dividends on the preferred stock were paid. Apart from some minor details the result of the consolidation was that the common stockholders held in the new company common stock of par value-equal to one-half of the par value of their holdings in the original Occidental Hotel Company. As to-the preferred stockholders they held in the new company one half the number of shares they formerly held in the old company of the same par value of' $100 per share, but bearing a lesser rate of noncumulative dividends. In lieu of the other half of the preferred stockholders’ interest in the original Occidental Hotel Company they received bonds apparently maturing in 3 years, with interest payable at. 3 per cent, per annum, secured by a second mort gage on the real property of the new hotel company. The interest held by the original Occidental Hotel in the subsidiary company, Occidental Hotel, Inc., was cancelled.
It is in the light of the foregoing circumstances that plaintiffs’ claim of fraud must be determined; and this involves considering what rights were taken from the preferred stockholders incident to the consolidation and what benefits they received on the one hand, and on the other hand what rights were taken from the common stockholders and what benefits they received.
The preferred stockholders held stock in the original hotel company on which cumulative dividends at 7 per cent, per annum had accrued to approximately 66 per cent, of the stock’s par value. No dividends had been paid by the corporation since May, 1931; and none could be declared because the corporation did not have “net profits” justifying such dividends. For years the corporation had been doing business at a loss and its capital was impaired. Its property as of January, 1943, was subject to a first mortgage of $450,000 and to a second mortgage in the amount of $75,000. Both mortgages were due and payable in 1945 or 1946. Plaintiffs point out in their brief that the company’s balance sheet as of March 31, 1943, discloses that its assets as carried on its books were sufficient, if the company were then liquidated, to pay preferred stockholders $123.81 per share. But plaintiffs did not seek liquidation, and under the facts here disclosed it may well be questioned as to the right of the stockholders to seek liquidation merely because of nonpayment of dividends, especially at a time when the corporation had no net profits. Further it is highly speculative whether on liquidation by receivership the book value of the company’s assets could have been realized in an amount to satisfy the par value of the preferred stock. Under the adopted plan of consolidation preferred stockholders’ received preferred stock in the new corporation in an amount equal to one-half of the par value of their stock in the old corporation. "While it is true dividends on the new preferred stock were only at the rate of 5 per cent, per annum and such dividends were not cumulative,, nonetheless the record discloses that these dividends have been paid and that those of the preferred stockholders who saw fit to do so have been able since the consolidation to sell their preferred stock holdings at par plus unpaid dividends. As to the remaining one-half of the par value of plaintiffs’' preferred stock in the original hotel company, it was provided that they should receive therefor 3 per cent, bonds of the new company secured by a second mortgage. The facts revealed by the record are-such as to justify the conclusion that these second mortgage bonds are perfectly good. Under the circumstances the preferred stockholders received substantially the par value of their holdings in the old company. They did not receive payment of accumulated dividends, but as of the date of December 31, 1940, for reasons hereinbefore noted, neither plaintiffs nor other preferred stockholders were entitled to recover such accumulated dividends, nor, under the record, were they entitled to do so at any time prior to the consolidation, which it is conceded was consummated in conformity with the Delaware law. As to the common stockholders the consolidation resulted in their surrendering one-half of the-face value of the common stock which they held in the original company. This was accomplished by their accepting an equal number of shares in the new company at the par value of $50, whereas the-par value of the common stock in the old company was $100. This alteration of the holdings of the common stockholders redounded to the benefit of’ the new corporation and the preferred stockholders therein for the reason it enabled the corporation to set up a surplus account from which dividends on preferred stock could be paid. In passing upon a similar issue a Delaware court has held:
“Complainant’s case is simply that the allocation between the old preferred and common stockholders is so unfair that it amounts to fraud. When fraud of this nature is charged, the unfairness must be of such character and must be so clearly demonstrated as to impel the conclusion that it emanates from acts of bad faith, or a reckless indifference to the rights of others interested, rather than from an honest error of judgment. Cole v. National Cash Credit Association, 18 Del Ch 47 (156 A 183); MacFarlane v. North American Cement Corp., 16 Del Ch 172 (157 A 396, 398). * * *
“The merger cannot become effective without the approval of defendant’s directors, the holders of a two-thirds majority of all of its capital stock, and the holders of a majority of its preferred stock. The evaluation of the benefits and detriments of a plan of this character, by the persons whose rights and interests will be affected and who hold a majority of the stock, is properly entitled to great weight. Moreover, ‘There is a presumption that the judgment of the governing body of a corporation, whether at the time it consists of directors or majority stockholders, is formed in good faith and inspired by a bona fides of purpose.’ Cole v. National Cash Credit Association, supra.” Porges v. Vadsco Sales Corporation, supra.
Incidentally it may also be noted that this plan of consolidation was not secretly conceived or hastily consummated. At the annual stockholders’ meeting of the orginal hotel corporation in January, 1942, by unanimous vote “the officers and directors of the company (were instructed) to prepare a suitable plan for the reorganization of the financial structure of the Occidental Hotel Company.” The plan was submitted in detail by report at the annual stockholders’ meeting a year later, January 11,1943. It was not adopted by the stockholders until a special meeting called for the purpose of adopting or rejecting the proposed plan was held, April 28,1943. Clearly it was of personal interest to each of the officers and directors who were stockholders to propose and have adopted a plan of consolidation that would be fair and equitable to the holders of preferred stock, because each of these officers and directors who had stock had holdings of preferred stock materially in excess of their holdings of common stock.
The burden of establishing the constructive fraud claimed by plaintiffs is upon them. Under the record before us, considered in the light of the provisions of the Delaware statute, we are not in accord with the contention of plaintiffs that they are entitled to relief on the theory of constructive fraud, and there is no evidence of actual fraud.
We cannot accept appellants’ contention that the agreement as to nonassenting preferred stockholders should be held to be against public policy and void because “Occidental Hotel, Inc., was never admitted to do business in this State.” See CL 1948, § 450.93 (Stat Ann § 21.94). Except for its inter-corporate action in entering into the consolidation agreement the Occidental Hotel, Inc., a Delaware corporation, never took any other action or transacted any business in this State. Our holdings, are to the effect that simple and discontinuous acts or contracts do not constitute carrying on business in this State within the meaning of the statute. C. H. Knight-Thearle Co. v. Hartline, 233 Mich 53; Electric Railway Securities Co. v. Hendricks, 251 Mich 602; National Adjusting Ass’n v. Dallavo, 253 Mich 239.
Nor are we in accord with appellants’ contention that the instant merger should be held void as to nonassenting preferred stockholders on the ground that it resulted in impairment of plaintiffs’ rights guaranteed by Article 1, § 10, and the Fourteenth Amendment of the Federal Constitution. Since, as hereinbefore indicated plaintiffs or their assignors as stockholders in a Delaware corporation did not have a vested right to payment of dividends or to redemption of their stock for which they seek recovery, the consolidation perfected in compliance with the Delaware law did not impair or violate their rights guaranteed by the Federal Constitution.
“The substantial elements of the merger and consolidation provisions of the General Corporation Law (of Delaware) as they now appear have existed from the time of the inception of the law. It is elementary that these provisions are written into every corporate charter. The shareholder has notice that the corporation whose shares he has acquired may be merged with another corporation if the required majority of the shareholders agree. He is informed that the merger agreement may prescribe the terms and conditions of the merger, the mode of carrying it into effect, and the manner of converting the shares of the constituent corporations into the shares of the resulting corporation.” Federal United Corp. v. Havender, supra.
In view of our conclusion herein we deem it unnecessary to pass upon defendant’s contention that plaintiffs’ suits, which were not commenced until June 25, 1946, were barred by the Delaware 3-year statute of limitations; or to consider at length defendant’s contention that plaintiffs’ asserted right of recovery was barred by laches. However, because it appears squarely in point on the issue of laches, we note Peterson v. New England Furniture & Carpet Co., 210 Minn 449 (299 NW 208). A headnote in the North Western Reporter reads:
“Where holders of preferred stock in Delaware corporation made no effort to enforce an alleged agreement for the redemption of snch stock by the corporation until long after the date set for such redemption, and not until more than 3 years after sale of all the assets of Delaware corporation to a newly-formed Minnesota corporation, which merger was approved by a large majority of the stockholders, such minority holders of preferred stock had no cause of action for damages against the Minnesota corporation.”
It would seem that plaintiffs’ suits to have a large amount decreed them for redemption of stock and payment of dividends alleged to have accrued approximately 6 years prior to bringing suit would likewise be barred on the ground of laches, especially since the record shows that prior to hearing these cases there had been transfers of stock in the new corporation.
Our review of the instant record brings the conclusion that plaintiffs are not entitled to relief sought in their bills of complaint. The decrees entered in the circuit court dismissing plaintiffs’ bills of complaint are affirmed, with costs to defendant.
Sharpe, C. J., and Bushnell, Boyles, Reid, Dethmers, Butzel, and Carr, JJ., concurred. | [
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T. M. Kavanagh, C. J.
(for reversal and remand). We concur with Justice Swainson that the pure legal issues concerning construction of our statutes are not peculiarly within the scope of the expertise of the Michigan Employment Relations Commission and as such were properly brought before the circuit court.
However, we do not agree that the trial court correctly denied the plaintiffs injunctive relief. The determinative issue which must be resolved in this case is:
Does the "agency shop” provision involved in the instant case create the practical equivalent of a "union shop” and, as such, is it prohibited by § 10 of the public employment relations act?
It should be emphasized at the outset that this case involves public employees and is therefore controlled by the so-called public employment relations act. The historical backdrop against which we must view this statute is most significant. The original act had as its stated purposes the prohibition of strikes by certain public employees and the provision for mediation of grievances. It was not until its amendment in 1965 that the statute granted public employees the right to organize and bargain collectively. 1965 PA 379 not only authorized the formation of public employees’ unions, but also incorporated the policy of the National Labor Relations Act — that an employer must assume a posture of complete neutrality regarding union membership. He must do nothing to either advance or retard union organizing. Likéwise must he refrain from practices which either encourage or discourage membership in labor organizations.
In this respect there is a significant distinction in Michigan’s labor law between public and private employees. Though MCLA 423.16; MSA 17.454(17) is nearly identical to MCLA 423.210; MSA 17.455(10) in respect to the requirement of employer neutrality, the statute regarding private employment includes one very important provision which is not found in the public employment relations act. MCLA 423.14; MSA 17.454(15) constitutes an authorization of union security clauses whether in the form of "closed shop,” "union shop” or "agency shop”.
Prior to the 1965 amendment of the public employment relations act, public employees had no right to organize collectively for bargaining purposes. Defendant union de-emphasizes the significance of this fact in an attempt to show that public employees now have been granted, with the exception of the right to strike, all rights conferred upon private employees.
However, as we have already indicated, the specification of rights for public employment is narrower than for private employment. The Legislature accomplished this result by not including in the public employment relations act the right, specified in MCLA 423.14; MSA 17.454(15), to enter into agreements containing union security clauses.
Defendant union urges the position that an "agency shop” agreement is not an "all-union” agreement as contemplated by MCLA 423.14; MSA 17.454(15) and that therefore it need not be specifically authorized by the public employment relations act. While this might be true where an "agency shop” provision accomplishes no more than reimbursement to the union for services rendered to a nonmember, it is certainly not true whenever an "agency shop” agreement has the effect of either encouraging or discouraging union membership in violation of MCLA 423.210; MSA 17.455(10).
The traditional "agency shop” provision is a well known type of union security clause. Its terms are often such as to render it the practical equivalent of a union shop and as such it by definition contravenes the policy and purposes of the public employment relations act.
The United States Supreme Court has on at least two occasions opined that an "agency shop” provision imposing on employees the only enforceable membership obligation — payment of initiation fees and regular dues — is the practical equivalent of an all-union shop. Retail Clerks International Association, Local 1625, AFL-CIO v Schermerhorn, 373 US 746; 83 S Ct 1461; 10 L Ed 2d 678 (1963); National Labor Relations Board v General Motors Corp, 373 US 734; 83 S Ct 1453; 10 L Ed 2d 670 (1963).
Significant here is the specific choice of language in article II, paragraph 2 of the contract. The payroll deduction for non-members is "a representation fee equivalent to the dues and assessments of the Association (including the National and Michigan Education Associations).” (Emphasis added.) There is not even the pretense that the sum to be deducted is a pro rata share of representation expenses, or that it will even be used for such purpose. In Retail Clerks v Schermerhorn, supra, the "agency shop” clause, though specifically earmarking the funds for aiding the union in meeting collective bargaining expenses, was nevertheless found objectionable under the Florida "right-to-work” law. The Court reasoned (373 US 746, 752-754):
"There is no ironclad restriction imposed upon the use of nonmember fees, for the clause merely describes the payments as being for 'the purpose of aiding the Union’ in meeting collective bargaining expenses. The alleged restriction would not be breached if the service fee was used for both collective bargaining and other expenses, for the union would be 'aided’ in meeting its agency obligations, not only by the part spent for bargaining purposes but also by the part spent for institutional items, since an equivalent amount of other union income would thereby be freed to pay the costs of bargaining agency functions.
"But even if all collections from nonmembers must be directly committed to paying bargaining costs, this fact is of bookkeeping significance only rather than a matter of real substance. It must be remembered that the service fee is admittedly the exact equal of membership initiation fees and monthly dues * * * , Unions 'rather typically’ use their membership dues 'to do those things which the members authorize the union to do in their interest and on their behalf.’ If the union’s total budget is divided between collective bargaining and institutional expenses and if nonmember payments, equal to those of a member, go entirely for collective bargaining costs, the nonmember will pay more of these expenses than his pro rata share. The member will pay less and to that extent a portion of his fees and dues is available to pay institutional expenses. The union’s budget is balanced. By paying a larger share of collective bargaining costs the nonmember subsidizes the union’s institutional activities. In over-all effect, economically, and we think for the purposes of § 14(b), the contract here is the same as the General Motors agency shop arrangement. Petitioners’ argument if accepted, would lead to the anomalous result of permitting Florida to invalidate the agency shop but forbidding it to ban the present service fee arrangement under which collective bargaining services cost the nonmember more than the member;_
Following this reasoning we are compelled to conclude that the "agency shop” provision in the instant contract is repugnant on its face to the provisions of our public employment relations act.
We hold that any such clause as this which makes no effort to relate the nonmembers’ economic obligations to actual collective bargaining expenses is clearly prohibited by § 10 of the public employment relations act, as of necessity either encouraging or discouraging membership in a labor organization.
Having so concluded, we hold that the trial court erred in denying plaintiffs injunctive relief. We see no need for an order remanding for proof of de facto discrimination in the assessment against nonmembers because there appears upon the face of the contract we have before us de jure discrimination of a magnitude sufficient to invalidate the clause.
Reversed and remanded to the trial court for the entry of injunctive relief consistent herewith.
Adams and T. G. Kavanagh, JJ., concurred with T. M. Kavanagh, C. J.
MCLA 423.201 et seq.; MSA 17.455(1) et seq.
1947 PA 336.
'Rather typically, unions use their members’ dues to promote legislation which they regard as desirable and to defeat legislation which they regard as undesirable, to publish newspapers and magazines, to promote free labor institutions in other nations, to finance low cost housing, to aid victims of natural disaster, to support charities, to finance litigation, to provide scholarships, and to do those things which the members authorize the union to do in their interest and on their behalf.’
"We cannot take seriously petitioners’ unsupported suggestion at the oral argument that we must assume that the union spends all of its income on collective bargaining expenses. The record is entirely silent on this matter one way or the other and it would be unique indeed if the union expended no funds for noncollective bargaining purposes.”_ | [
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Williams, J.
The insurance issues in this case are basically similar to those present in Blakeslee v Farm Bureau Mutual Ins. Co, 388 Mich 464 (1972).
I. Does 1965 PA 388; MCLA 500.3010; MSA 24.13010 invalidate such “other insurance” and/or “exclusions” clause limitations? Specifically, can the injured insured guest passenger of an insured host driver, who is injured in an accident through the fault of an uninsured motorist, combine recoveries (i.e. stack or pyramid) from the defendant insurance company which covered both the guest passenger and host driver, in excess of the limitation provisions where the insurance was issued before the passage of 1965 PA 388 but the injury occurred afterwards?
II. If not, does the specific language of the (A) "other insurance” limitation against recovery on other insurance policies as well as the primary policy, or (B) the separate fall back "exclusions” clause from recovery on other policies in the uninsured motorist coverage apply to the facts of the instant case so as to bar the guest passenger recovery up to the full amount on both policies?
On January 16, 1966, Karen Sue Rowland was riding as a guest passenger in the car of the host driver and owner Karl W. John. A collision occurred between the host driver and an uninsured motorist. The uninsured motorist was indisputably at fault in the accident which resulted in severe injury to the guest passenger. The host driver had uninsured motorist liability coverage through defendant DAIIE that allowed recovery in the amount of $10,000 against an uninsured motorist for each passenger. The guest passenger had a similar but independent policy of insurance issued to her by the defendant upon her own vehicle that gave her the same protection for injuries caused by an uninsured motorist.
The defendant paid $10,000 to the injured guest passenger under the host driver’s policy, but refused to pay an additional $10,000 under the guest passenger’s own policy due to restrictive clauses in the policy.
The guest passenger instituted suit against the driver of the uninsured automobile to recover damages. She recovered on her suit in the amount of $87,000.
Prior to the judgment against the driver of the uninsured vehicle, the guest passenger brought suit in Wayne County Circuit Court seeking a declaratory judgment on the coverage of her policy. The Honorable Blair Moody, Jr. entered an order for partial summary judgment of no cause for action in favor of the defendant. The Court of Appeals denied plaintiffs request for leave to appeal. On appeal to this Court, we granted plaintiffs application for leave to appeal and remanded said cause to the Court of Appeals to be considered on the merits. The Court of Appeals, in affirming the trial court’s decision, held 1) that the "other insurance” clause cut off the guest passenger’s recovery on her policy, and 2) that MCLA 500.3010 was inapplicable since the policy of insurance was issued prior to the statute taking effect and could have no retroactive effect.
I.
Our statute, MCLA 500.3010, which was controlling in both Blakeslee and Boettner is not applicable in this case. The guest passenger’s insurance policy was issued September 25, 1965. Since the statute did not become effective until January 1, 1966, it cannot be a factor in the outcome of this case. We agree with the Court of Appeals (34 Mich App 269) that the applicability of the statute is controlled by Wells v Detroit Automobile Inter-Insurance Exchange, 29 Mich App 235 (1970) where it was held that MCLA 500.3010 could not apply to policies issued prior to the effective date of the statute. Any other result would be inconsistent with Const 1963, art 1, § 10:
"No bill of attainder, ex post facto law or law impairing the obligation of contract shall be enacted.”
II.
Thus we are left with the problem of determining whether the "other insurance” clauses or the "exclusions” clause of the policy apply to our case to prohibit the guest passenger from recovering under her policy.
A. "Other Insurance”
The "other insurance” clause reads in pertinent part:
"With respect to bodily injury to an insured sustained while occupying an automobile or through being struck by an uninsured automobile, if such insured is a named insured under other similar insurance available to him, * * * 99
The Court of Appeals felt that there need be no interpretation of this clause as they found any interpretative questions settled by Horr v Detroit Automobile Inter-Insurance Exchange, 379 Mich 562 (1967). With this we cannot agree. The "other insurance” clauses of the AAA policies involved in both Horr and the present case are identical. They are expressly applicable to limit recovery only when "the named insured is a named insured under other similar insurance available to him * * * .” In Horr, there was no controversy as to whether plaintiff’s injured son was a "named insured” under the plaintiff’s policy; he clearly was so named because the plaintiff’s policy covered the plaintiff’s son specifically.
The present guest passenger is not a "named insured” under her host driver’s policy in the strict sense that her name is used or that she is referred to as a member of the family or some other pertinent relationship. Thus under the plain meaning of the language contained in the "other insurance” clause, the clause is not applicable to her case.
If the defendant wished to make the "other insurance” clause applicable to all cases where the claimant has other insurance available to him following an accident, it should have worded its policy accordingly.
B. "Exclusions” Clause
The "exclusions” clause in defendant’s policy reads in pertinent part:
"The insurance afforded by this coverage [uninsured motorist] does not apply:
"(1) to bodily injury to an insured sustained while occupying any automobile, other than an owned automobile, if the owner of such automobile has insurance similar to that afforded by this coverage and such insurance is available to such insured;”
If this clause applies, to our facts, the guest passenger cannot recover on her policy.
The guest passenger sustained bodily injury while occupying an automobile not owned by her. The host driver was the owner. The host driver had identical insurance, not merely similar, to that of the guest passenger as they were insured by the same company. This fact also establishes that "such insurance” was available to the guest passenger. Therefore the "exclusions” clause does apply to our facts.
We affirm. Costs to defendant.
T. M. Kavanagh, C. J., and Adams, T. E. Brennan, T. G. Kavanagh, and Swainson, JJ., concurred with Williams, J.
Black, J. did not sit in this case.
Boettner v State Farm Mutual Ins Co, 388 Mich 482 (1972).— Reporter. | [
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Adams, J.
I. Facts and Proceedings
A. People of the State of Michigan v Pat Duncan
On October 25, 1970, Pat Duncan, along with 14 other persons, was arrested and charged with first-degree murder and conspiracy to commit first-degree murder. On October 28, 1970, over defense counsel’s objection, a motion by the prosecutor was granted in recorder’s court to adjourn the preliminary examination until November 5,1970.
On November 4, 1970, a Wayne County citizens’ grand jury issued an indictment charging the same crimes as were charged in the previous complaint and warrant. The complaint and warrant were dismissed. There was no preliminary examination.
Defendants filed a motion to quash the indictment or for a preliminary examination. It was denied. Defendants filed a motion for discovery, including a request for the grand jury testimony. Judge John R. Murphy granted the motion, allowing defense counsel to inspect the grand jury minutes one week prior to trial, and further ordering an in camera inspection of the minutes by the court for "an independent determination on the question of probable cause.” The prosecutor was granted an emergency leave to appeal from this order by the Court of Appeals. That Court affirmed the part of the discovery order which did not relate to the grand jury testimony but stayed the order as to both uses of the grand jury minutes "pending formal decision on that point.”
The trial court entered a formal order allowing defense counsel to view the grand jury minutes and ordering an in camera inspection by the court to determine whether there was "some legal basis in law and fact” for the indictments. Another appeal was taken and, on the basis of MCLA 767.19g; MSA 28.959(7) (added by 1970 PA 9); and People v Thompson, 122 Mich 411 (1899), the Court of Appeals held that neither defendants nor the trial judge could see the grand jury transcript prior to trial. People v DeSaussure, 33 Mich App 241 (1971).
Pat Duncan’s case was severed from the trial of the other defendants on April 30, 1971 because of her physical condition. She was the only defendant to challenge the decision of the Court of Appeals. Her application for leave to appeal was granted by this Court. (385 Mich 786.)
B. People of the State of Michigan v James J. Harris
On May 26, 1971, a citizens’ grand jury in Oakland County filed an indictment charging defendant with the sale of heroin. Defendant’s motion for preliminary examination was granted by the trial court. Upon emergency appeal by the people to the Court of Appeals, that Court reversed. (37 Mich App 179.) We granted defendant’s application for leave to appeal. (386 Mich 778.)
C. People of the State of Michigan v Alvin O. Brown, Jr., et al
On May 14, 1970, a Genesee County citizens’ grand jury returned a true bill charging Alvin O. Brown, Jr., and others, with the crime of conspiracy to violate various. Michigan gambling laws. The cause was assigned to a. circuit judge for trial. Several defendants filed motions seeking a preliminary examination. On November 5, 1970, the circuit court filed a written opinion holding §19g of 1970 PA 9 unconstitutional and dismissed the indictment. On appeal to the Court of Appeals, that Court reversed and remanded for trial. We granted leave to appeal. (386 Mich 788.)
II. Grand Jury Records — Discovery
In People v Bellanca, 386 Mich 708, 715-716 (1972), a majority of this Court held that:
"[A] person accused of a crime by any grand jury has the right to a transcript of his testimony and such parts of the record, including the testimony of other witnesses before the grand jury touching on the issue of his guilt or innocence of the crime charged. To obtain it he must petition the circuit court of the county wherein the grand jury was impaneled therefor.
"In order to implement the procedure for obtaining custody of the material requested, we are today publishing a court rule. * * *
"The Bench and Bar are hereby advised that the provisions of MCLA 767.19g; MSA 28.959(7) are hereby superceded (See Perin v Peuler [on rehearing], 373 Mich 531, 541 [1964]).”
The decision in Bellanca and the adoption of GCR 1963, 787, Discovery of Grand Jury Proceedings, cover the issues with regard to discovery of grand jury testimony and the validity of § 19g of 1970 PA 9 raised in these cases.
III. Right to Preliminary Examination
The remaining critical issue in all three cases is whether a defendant indicted by a citizens’ grand jury is entitled to a preliminary examination. The Federal Constitution does not require the states to initiate criminal prosecutions by grand jury indictment, Hurtado v California, 110 US 516; 4 S Ct 111; 28 L Ed 232 (1884), nor does it require a preliminary examination as a condition precedent to prosecution by the filing of an information, Lem Woon v Oregon, 229 US 586; 33 S Ct 783; 57 L Ed 1340 (1913).
The Michigan Constitution of 1835 provided that criminal felony prosecutions should be initiated exclusively on a presentment or indictment by a grand jury. Sections 13 and 14 of RS 1846, ch 163, provided for preliminary examinations in connection with such grand jury proceedings.
If the original procedure in Michigan had been to have the preliminary examination after a grand jury indictment, the statutory history would be a persuasive reason to hold in favor of such a preliminary examination; but, historically, the purpose of the preliminary examination was to provide a means for proceeding against an accused before presentation of the charge to a grand jury, not afterward. Turner v People, 33 Mich 363, 370 (1876). It is to be remembered that grand juries were not in continuous session and there was often a lapse of time between an arrest and an indictment. Thus, § 18 of 1846 RS, ch 163, provides for holding the prisoner until indictment or allowing him to be out on bail.
The Michigan Constitution of 1850 omitted the requirement of a presentment or indictment by a grand jury, and by §28, art 6, Judicial Department, set forth the rights of an accused. In 1859, the Legislature enacted 1859 PA 138, which provided for prosecutions by information preceded by a preliminary examination. The new procedure was initiated to speed up the criminal process. It had the effect, in a large measure, of eliminating the grand jury since, although it was not abolished, prosecution by information replaced prosecution by a grand jury as a standard practice. People v Annis, 13 Mich 511, 514 (1865); Yaner v People, 34 Mich 286, 287 (1876). Grand jury proceedings continued to follow the former pattern of having no preliminary examination after presentment or indictment. Special Committee to Study and Report upon the One-Man Grand Jury Law, 26 MSBJ, September 1947, pp 55, 59; 8 Michigan Law & Practice, Criminal Law, § 91, p 114; Miller, Informations or Indictments in Felony Cases, 8 Minn L Rev 379, 381-382 (1924). The only significant change was the statutory recognition of the increased importance of the preliminary examination.
During the late 1920’s, there was much public concern about the slowness of the administration of justice. Report of the Committee on Legislation and Law Reform, 6 MSBJ 105, January 1927; Webster, The Courts and Procedural Reform, 6 MSBJ 191, March 1927. Prosecution by information was seen as speedier, more economical and efficient than prosecution by indictment. Moley, The Initiation of Criminal Prosecutions by Indictment or Information, 29 Mich L Rev 403 (1931); Moley, The Use of the Information in Criminal Cases, 17 ABAJ 292 (1931). Michigan already had provided for prosecutions by information but reform was still felt to be necessary. A Committee of Inquiry into Criminal Procedure published a report and schedule of revisions of the Code of Criminal Procedure in 1927. Their recommendations were incorporated in 1927 PA 175. Section 1 of chapter VI of 1927 PA 175 read:
"The state and accused shall be entitled to a prompt examination and determination by the examining magistrate in all criminal causes and it is hereby made the duty of all courts and public officers having duties to perform in connection with such examination, to bring them to a final determination without delay except as it may be necessary to secure to the accused a fair and impartial examination.” (Emphasis added.)
The Committee gave as their summary to this amendment:
"Sec. 1. Both state and accused entitled to speedy examination, (new) This section emphasizes the fact that a speedy examination by the magistrate is at all times essential.” (Schedule submitted by Committee of Inquiry into Criminal Procedure, p 9.)
The clear intent of the amendment was to provide for and stress the need of prompt examinations. If, by this section, the Legislature had meant to add another preliminary examination after a grand jury indictment, it would have done so with more direct language than that just quoted as such a procedure would have been a radical change from past practices. When the Legislature did intend to provide for a preliminary examination after a one-man grand jury indictment, it did so by specific statutory language. (1927 PA 175, ch VII, § 4, and MCLA 767.4; MSA 28.944.)
Today, a preliminary examination is rarely accorded prior to a grand jury indictment since a grand jury is no longer the sole means by which the people can proceed against one accused of crime and its use is largely confined to investigating criminal activity. However, modern day practice cannot change the clear meaning of the phrase "in all criminal causes”. Contrary to defendants’ claim, the phrase did not create a new guarantee of a preliminary examination after a grand jury indictment. The phrdse was simply a recognition of past practices where a preliminary examination was given before the filing of an information or an indictment.
The conclusion is inescapable that, in the absence of a clear statutory provision for a preliminary examination following presentment or an indictment by a grand jury, there has never been such a right.
The primary function of a preliminary examination is to determine if a crime has been committed and, if so, if there is probable cause to believe the defendant committed it. People v Bellanca, supra. See, also, People v McLean, 230 Mich 423, 425 (1925); People v Asta, 337 Mich 590 (1953); People v Hatt, 384 Mich 302 (1970); People v Walker, 385 Mich 565 (1971).
The preliminary examination has grown in importance and significance both for the prosecution and a defendant. The advantage of a preliminary examination for a defendant was pointed out in In re Palm, 255 Mich 632, 635 (1931). Justice Wiest, writing for the Court, stated:
"It is urged, in behalf of Palm, that the first Constitution of the State, adopted in 1835, expressly required all criminal prosecutions for felonies to be by presentment or indictment of a grand jury (Const. 1835, art. 1, § 11), and, subsequent constitutions being silent on the subject, the mandate still prevails. * * * . The mandate in the Constitution of 1835 limited the legislative power in the respect mentioned, while subsequent Constitutions left the subject free to legislative control, and, therefore, the legislature rightly could and did provide for criminal prosecutions by information. See Act No. 138, Laws of 1859, 3 Comp. Laws 1929, § 17215. This affords an accused a preliminary examination before a magistrate, opportunity to come face to face with accusers, to question them and to have knowledge of the evidence against him.”
In People v Wilcox, 303 Mich 287, 295-296 (1942), this Court stated the advantage of a preliminary examination to the people as follows:
"The new criminal code, 3 Comp. Laws 1929, § 17193 (Stat. Ann. § 28.919), distinctly provides that the State and accused shall be entitled to prompt examination and determination by the examining magistrate in all criminal cases, et cetera. The State may be very much interested in determining whether or not there is sufficient probable cause to hold a respondent for trial, or it may desire to perpetuate the testimony in the event that a witness shall disappear or die before the trial. The rule is well expressed in Van Buren v United States, 36 Fed. 77, 82 [1888], from which we quote the. following excerpt:
" 'The arrested party, sometimes when not guilty, in order to divert suspicion from others, but more frequently when guilty, and in order to aid the escape of confederates in the crime, is quite willing by waiving examination to suppress present inquiry; and oftener still, perhaps, this is done by the accused in the hope of suppressing the evidence against himself, or of gaining some like advantage from delay. An immediate develop ment of the evidence and testimony is sometimes essential to the ends of justice, and it would be strange indeed if the laws are so framed, or the courts disposed so to interpret them as to deny the government this important power. Its exercise, unless wantonly abused, as almost any power may be abused, can harm no one.’ ”
The nature and purpose of a preliminary examination is summed up in 21 Am Jur 2d, Criminal Law, § 443, pp 446-447, as follows:
"A preliminary examination before a magistrate is not a criminal prosecution or judicial trial of the accused. It is a mere judicial inquiry to determine whether there is 'probable cause’ for the accusation, the nature of which is thereby made known to the accused.
"The primary purpose of a preliminary hearing is to ascertain whether there is reasonable ground to believe that a crime has been committed and whether there is just cause to believe the defendant committed it. Further purposes are said to be to perpetuate testimony, to determine the amount of bail to be given by the prisoner in case he is held for trial, to weed out groundless or unsupported charges of grave offenses, and to relieve the accused of the degradation and the expense of a criminal trial and of the deprivation of his liberty if there is no probable cause for believing that he is guilty of the crime.”
Prior to organized police departments, the grand jury helped to find witnesses and collated community knowledge concerning a crime. However, in modern practice, a citizens’ grand jury, consisting of laymen, may not understand the technical legal issues of a case or the rules of evidence. It must often rely upon the prosecutor as the sole legal interpreter allowed to aid it in its deliberations. Although it has the advantages of secrecy and the power to compel the appearance of witnesses, its effective use would appear to be limited.
The preliminary examination is keyed to modern methods of investigation carried on by the police and the prosecutors. A defendant’s rights are recognized and evidentiary rules are followed. Recently a majority of this Court found in People v Bellanca, supra, 712, that:
"In Michigan the preliminary hearing is a judicial proceeding designed to establish probable cause that a crime has been committed and probable cause to believe the accused committed it. It is a critical stage of our criminal process. ’’(Emphasis added.)
There may well be serious questions of equal protection and due process involved in the present Michigan procedure, as counsel in these cases ably argue, since it denies to an accused indicted by a multiple-man grand jury what has become recognized as a fundamental right in most criminal cases — the right to a preliminary examination. Rather than attempting to rule on an issue of constitutional rights in these cases, we believe the better course is to exercise the inherent power of this Court to deal with the situation as a matter of criminal procedure, as was done in People v Bellanca, supra. We hold that in each case, and in all pending cases in which the right to a preliminary examination was asserted prior to trial and is presently being asserted, such right shall be accorded to the defendant. In all future cases wherein a defendant is accused of a felony, the right to a preliminary examination shall exist.
The Court of Appeals is reversed in all three cases. The cases are remanded to the trial courts for further proceedings in accordance with this opinion.
T. M. Kavanagh, C. J., and T. G. Kavanagh, Swainson, and Williams, JJ., concurred with Adams, J.
Art 1, § 11:'
"No person shall be held to answer for a criminal offence, unless on the presentment or indictment of a grand jury, except in cases of impeachment, or in cases cognizable by justices of the peace, or arising- in the army or militia when in actual service in time of war or public danger.”
"Sec. 13. The magistrate before whom any person is brought, upon a charge of having committed an offence, and not cognizable by a justice of the peace, shall proceed as soon as may be, to examine the complainant, and the witnesses in support of the prosecution, on oath, in the presence of the prisoner, in regard to the offence charged, and in regard to any other matters connected with such charge, which such magistrate may deem pertinent.”
"Sec. 14. After the testimony in support of the prosecution has been given, the witnesses for the prisoner, if he have any, shall be sworn and examined, and he may be assisted by counsel in such examination, and also in the cross-examination of the witnesses in support of the prosecution.”
"Sec. 18. If it shall appear that an offence not cognizable by a justice of the peace has been committed, and that there is probable cause to believe the prisoner guilty thereof, and if the offence be bailable by the magistrate, and the prisoner offer sufficient bail, it shall be taken, and the prisoner discharged, but if no sufficient bail be offered, or the offence be not bailable by the magistrate, the prisoner shall be committed to prison for trial.”
Art 6, §28:
"In every criminal prosecution the accused shall have the right to a speedy and public trial by an impartial jury, which may consist of less than twelve men in all courts not of record; to be informed of the nature of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and have the assistance of counsel for his defense.”
Section 8 of 1859 PA 138 reads:
"No information shall be filed against any person for any offence, until such person shall have had a preliminary examination therefor, as provided by law, before a justice of the peace, or other examining magistrate or officer, unless such person shall waive his right to such examination * * * .”
This section is now in MCLA 767.42; MSA 28.982.
This is the same wording as the present MCLA 766.1; MSA 28.919.
Miller, Informations or Indictments in Felony Cases, 8 Minn L Rev 379 (1923-1924); Mayers, The American Legal System (Harper & Row, NY 1964) pp 67-71. Contra: Scigliano, The Grand Jury, the Information and the Judicial Inquiry, 38 Or L Rev 303 (1959).
The bench and bar are respectfully advised that, pursuing GCR 1963, 933, the Court has this day notified the secretary of the State Bar and the Court Administrator of intent of the Court to consider, with view toward adoption, GCR 1963, 788, reading as follows:
"Rule 788. Preliminary Examination After an Indictment.
"Whenever an indictment shall be returned by a grand jury or a grand juror, the State and the person accused of a felony in such indictment shall be entitled to a preliminary examination before an examining magistrate unless such person shall waive his right to such examination. The procedure therefor shall be in conformity with Chapter VI of The Code of Criminal Procedure as far as applicable. This rule shall also apply to all pending cases in which the right to a preliminary examination has been and is presently being asserted.” | [
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Butzel, J.
Defendant Edwin Gr. Kunze, as vendor, entered into a land contract which was assigned to Hazel E. Boyes, as vendee, for the sale of property in the village of Oak Park, Oakland county, Michigan. $2,000 was paid on the purchase price and balance of $4,300 was payable with interest in monthly instalments of $43 each or more. Hazel E. Boyes assigned her vendee’s interest to Leighton D. Boyes and Martha Boyes, plaintiffs herein. Subsequently while the contract was in full force and effect Leighton D. Boyes arranged for a “Gr. I.” loan. His counsel stated in court the bank was prepared to make the loan upon receipt of a proper deed, and defendant-vendor thereupon was requested to take such deed to the bank and receive his money, but he refused to accede to this request. Thereupon plaintiffs as assignees of the vendee, brought suit for specific performance. At the hearing the court accepted statements of the attorneys without any objection in lieu of testimony. It appears from the replies to questions propounded by the court that defendant claims that on 2 previous occasions he had gone to a finance company at the request of Leighton D. Boyes but found that the latter had not completed his negotiations. Defendant claimed that there had not been a proper tender of the balance due him and, therefore, he was not obligated to deliver a deed to the property. He thus stood on his technical legal rights. The court entered an order that defendant should comply with any reasonable request to appear at a banking institution in the city of Detroit, county of Wayne, State of Michigan, to accept legal tender of moneys and deliver a warranty deed as provided for in the contract. The village of Oak Park is a suburb of the city of Detroit. The court further ordered that interest be suspended on the land contract until defendant complied with the terms of the order. Defendant appeals.
While we may be in sympathy with the effort of the trial judge to help plaintiffs secure their deed upon defendant’s receiving all that is due him and we cannot commend defendant’s refusal, nevertheless, there was not a proper legal tender. There was nothing in the contract that obligated defendant to go to the bank to receive the money. Under the circumstances, plaintiffs cannot prevail. See Richardson v. Lamb, 253 Mich 659.
We are constrained to' reverse the order of the trial judge, but without costs because of the peculiar circumstances of the case, this being a suit in equity.
Sharpe, C. J., and Bushnell, Boyles, Reid, North, Dethmers, and Carr, JJ., concurred. | [
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Wiest, J.
September 9, 1935, plaintiff issued a $1,000 group life insurance certificate to William Shears, with beneficiary therein designated as “Blanche Shears — wife.” Blanche Shears was the maiden name of the insured’s sister hut she had been married for many years and her name was Blanche Hughes. The insured was married and lived with his wife Corine, at 1984 Maple street, Detroit, at the time the insurance was applied for and certificate issued. The insured died July 6, 1941, and Blanche Hughes, claiming to be the insurance beneficiary, brought suit as such to obtain the insurance, and the widow also made claim as the beneficiary under the insurance policy. Thereupon the insurance company filed a bill of interpleader, paid the insurance into court and left it to the court, under pleadings and proof of the claimants, to determine the true beneficiary.
The bill of interpleader is not in the printed record but is a part of the record on appeal in the clerk’s office and has been examined. It was stated therein that the certificate of insurance was issued to William Shears in response to his written application therefor and designated “Blanche Shears— wife,” of 1984 Maple, as the beneficiary therein. The claimants of the insurance, as defendants in the bill of interpleader, filed answers averring their rights to the fund.
At the hearing in the circuit court no proofs were taken but upon uncontroverted pleadings and statements and concessions of counsel for the parties the court found:
“There are four possible determinants: The first name, the last name, description (viz., the word ‘wife’), and the address. Three of those tests, or determinants, are in favor of Corine, viz., the last name was hers, ‘ Shears ’; she actually was his wife; and she actually lived at 1984 Maple Street.
“With reference to the sister, only one of the four determinants is in her favor, viz., the first name, Blanche. Her last name was not Shears. She was not his wife. She did not live at 1984 Maple Street, Detroit.”
Upon such reasoning the court decreed the proceeds of the insurance to. the wife of the deceased, Corine Shears. The court correctly stated the applicable rule of law and the decree is affirmed, with costs'to Corine Shears against defendant Blanche Hughes.
North, C. J., and Starr, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Starr, J.
Plaintiffs petition this court for a writ of mandamus to compel defendant board to execute and deliver quitclaim deed conveying to them all right, title, and interest held by the State on August 3,1943, in and to certain lands located in the village of Saugatuck, Allegan county. In response to an order to show cause, defendant filed answer denying plaintiffs ’ right to the writ.
The material facts are not in dispute. In pursuance of the general tax law (1 Comp. Laws 1929, § 3389 et seq. as amended [See Comp. Laws Supp. 1940 and 1943, § 3389 et seq., Stat. Ann. and Stat. Ann. 1943 Cum. Supp. § 7.1 et seq.)) the lands described in plaintiffs’ petition were offered for sale at the annual May, 1940, tax sale for delinquent taxes for the years 1930 to 1935, inclusive, and, there being no other bidders, said lands were sold to the State. As there was no redemption from such sale, the State’s title became absolute May 6, 1941, and on June 3, 1941, the auditor general conveyed the lands to the State. ' The State land office board act, hereinafter referred to as the act, is Act No. 155, Pub. Acts 1937, as last amended by Act No. 196, Pub. Acts 1943 (Comp. Laws Supp. 1940 and 1943, § 3723-1 et seq., Stat. Ann. 1943 Cum. Supp. § 7.951 et seq.). Thereafter, under section 3 of the act; defendant board was vested with control and jurisdiction of the lands in question.
In pursuance of section -7 of the act; defendant board prepared to sell the lands at thé February, 1942, so-called scavenger sale, but upon the application of the village of Saugatuck, in pursuance of section 5 of the act, they were withheld from such sale. The village did not redeem, and in pursuance of sections 5 and 7, the board offered the lands for sale at the February, 1943, scavenger sale. As no bid was received at such sale, the lands became “subject to disposition” by defendant board under section 8 of the act, which provides in part:
“All other lands under tbie jurisdiction and control of the board shall be classified with the end in view of rehabilitating such lands as rapidly and speedily as possible and returning said lands to the tax rolls. * * * The State land office -board shall make or cause to be made an appraisal of such lands. * * *
“The board is authorized to sell any such lands, except those over which it has relinquished jurisdiction, to the best advantage, but for not less than the appraised valuation to be fixed by the board from time to time, to reliable purchasers, either at cash or on time payment plans, such time payments not to run for longer than 10 years from the date of such sale and the board shall, upon request by resolution of the governing body of the county, city, village, township or school district in which said lands are located, transfer such lands as such county, city, village, township or school district shall request, upon proof satisfactory to said board that such lands are needed for public uses but not for resale, to such county, city, village, township or school district and give a quitclaim deed therefor covering such parcel or parcels of land, executed on behalf of the State of Michigan by the boárd. ’ ’
In pursuance of the above-quoted provisions. of section 8, the lands were appraised, and defendant board fixed a valuation of $250 thereon. Thereafter it advertised and gave notice that the lands would be offered for sale to the highest bidder at a designated place in Allegan county on August 3, 1943. Such sale, referred to in plaintiffs’ petition as a subsale, was held, and plaintiff Harold J. Mulder, as agent for all plaintiffs, bid the sum of $255, which was in excess of the appraised valuation. The lands were struck off to plaintiffs, who signed a form furnished by the board, entitled “memorandum of sale,” which provided in part:
“The above lands located in the above county, State of Michigan, identified by the above sale number of the official sale list for said county of the State land office board having been offered for sale at public auction pursuant and subject to the provision of Act No. 155, Pub. Acts 1937, as amended, and the rules and regulations of the State land office board, the undersigned has on the day above set forth made the highest bid therefor in the amount set opposite the sale number above.
‘ ‘ The undersigned hereby agrees to pay the above stated highest bid price in accordance with the following terms: * * *
“Total amount in cash on date of sale. * * *
“The rights of the undersigned herein are subject to the provisions of Act No. 155, Pub. Acts 1937, as amended, and the rules and regulations of the State land office board.”
Plaintiffs paid their bid of $255 in cash and defendant board, by its agent, delivered the following “certificate of purchase” dated August 3, 1943:
“It is hereby certified that the lands identified in the above memorandum of sale have been bid in by Harold J. Mulder, the bidder executing said memorandum of sale pursuant and subject to the provisions of Act No. 155, Pub. Acts 1937, as amended, and the rules and’ regulations of the State land office board; that said bidder has deposited in cash with this board * * *
“The full purchase price thereof as set forth in said memorandum of sale. * * *
“Said highest bidder shall be entitled to receive a quitclaim deed * * * covering the lands above identified, executed in behalf of the State of Michigan by the State land office board. ’ ’
On October 6, 1943, plaintiffs made written demand that defendant board execute and deliver a quitclaim deed of the lands in question. On October 8th, in response to such demand, defendant wrote plaintiffs ’ attorneys as follows:
“In connection with your demand I wish to advise that the State land office board has rejected the offer of Porter and Mulder for the purchase of this property and authorized a refund of their deposit.. The action of the board was determined by the fact that the village of’Saugatuck deeded (needed) this property for public use and the transfer of such lands for such use has also been approved by the board.
“I wish to point out that under the rules and regulations of' the board, the board reserves the right to reject any offers to purchase at any time prior to the execution and delivery of deeds or contracts.
“Due to the above I wish to advise that this office cannot honor your request that a deed be executed and delivered to your clients.”
It appears that in pursuance of section 8 of the act the village council of Saugatuck, on October 8, 1943, had adopted a resolution requesting defendant board to convey the lands in question to the village for public purposes, and in its answer defendant alleges that it rejected plaintiffs’ bid in order to make conveyance to the village.
Section 11 of the act authorized defendant board “to promulgate such rules and regulations as may be necessary to carry out the purposes and pro visions” of the act. In its answer defendant alleges that the sale on August 3, 1943, was conducted in pursuance of previously adopted rules and regulations, which provided in part:
“The board reserves the right to reject any or all bids at any time prior to delivery of deeds or contracts covering said bids. * * *
“The sale will be conducted as a public auction. No bids will be received in advance- or by mail. Each bidder must be present at the sale or have an agent bid for him. Each parcel will be sold to the high bidder, subject to the provisions of the above act and these rules and regulations.”
In its answer defendant contends that mandamus is not plaintiffs’ proper -remedy and that they have a complete and adequate remedy in chancery. As the material facts are not in dispute, the only question involved is whether or not defendant board was legally obligated to convey the lands to "plaintiffs. If the board was so obligated, the execution and delivery of a deed to plaintiffs would be only the performance of a ministerial act not requiring the exercise of judgment or discretion. As the only relief plaintiffs seek is a deed of the lands, we conclude that mandamus was their proper remedy. National Bank of Detroit v. State Land Office Board, 300 Mich. 240; Chemical Bank & Trust Co. v. County of Oakland, 264 Mich. 673; Tennant v. Crocker, 85 Mich. 328.
Plaintiffs contend that their bid of $255, the confirmation of sale, the payment of the bid price, and the certificate of purchase created a contract obligating defendant board to execute and deliver a quitclaim deed of the lands in question. Defendant board contends, in substance, that the sale was subject to the provisions of the act and to its rules and regulations; that under section 8 the village of Saugatuck was entitled to a deed of the lands for public purposes; and that the board had the right to reject plaintiffs’ bid in order to make conveyance to the village.
As no bid was received at the scavenger sale held in February, 1943, the lands, under section 7 of the act, became “subject to disposition in accordance with the provisions of section 8.” The sale on August 3d was accordingly held in pursuance of section 8. The distinction should be noted between the method provided in section 7 of the act and that provided in section 8 for the village to acquire title to the lands in question. Under section 7 the village' could have acquired title as a purchaser but would have been obliged to pay “the expenses of the sale plus the proportionate part of the taxes and assessments which were due to the taxing unit or units not bidding and cancelled at the time of vesting of title in the State of Michigan.” Under section 8 the village could acquire title without payment of expenses, taxes or other compensation, merely by requesting a transfer and making satisfactory showing that the lands were needed for public purposes.
The memorandum of sale signed by plaintiffs and the certificate of sale signed by defendant board both provided in substance that the sale was subject to the provisions of the act and to the rules-and regulations of the board. The board had the right under section 11 of the act to adopt reasonable rules and regulations. Emmons v. State Land Office Board, 305 Mich. 406. It adopted a rule whereby it reserved “the right to reject any or all bids at any time prior to delivery of deeds or contracts” to purchasers. The subsale at which plaintiffs presented their bid was held August 3, 1943, and the board had not delivered deed to plaintiffs when, on October 8th, the village of Saugatuck requested a transfer of the lands for public purposes. If the board’s rule was reasonable and valid, it had the right to reject plaintiffs’ bid on October 8th. It is clear that the rule protected the right of municipalities under section 8 to acquire lands for public purposes “at any time prior to delivery” of a deed to the highest bidder at a sale held in pursuance of said section. By reference, the rule in question became a part of the confirmation of sale and of the certificate of sale. The board could not have retained plaintiffs’ payment and refused to give a deed beyond a reasonable length of time, but the period from the sale on August 3d to the request of the village on October 8th was not an unreasonable delay. Under the circumstances shown we cannot say that such rule was unreasonable.
Plaintiffs contend that the rule deprived them of vested property rights as purchasers of the lands, without due process of law. The sale was held, plaintiffs’ bid was presented, the price was paid, and the certificate of purchase was issued, subject to the provisions of the act and the rules and regulations of the board, that is, subject to the right of the village of Saugatuck, under section 8, to acquire the lands for public purposes, and the right of the board, under its rules and regulations, to reject plaintiffs ’ bid at any time prior to delivery of deed. Therefore, as plaintiffs acquired no absolute right to the lands, the board’s rejection of their bid did not deprive them of property rights without due process of law. The cases of Wilson v. City of Pontiac, 294 Mich. 79, and Emmons v. State Land Office Board, supra, cited by plaintiffs, involved sales under section 7 of the act and, therefore, are not applicable to the sale in the present case under section 8.
In pursuance of section 8; by resolution of its council, the village had requested a transfer of the lands for public purposes. The proof that the lands were needed for public purposes and were not to be used for resale apparently was “satisfactory to said board.” Not having delivered a deed to plaintiffs as purchasers, the board had the right to reject their bid. Under the facts '.and circumstances shown, it is clear that the village was entitled to a deed of the lands.
We conclude that plaintiffs are not entitled to a deed of the lands in question. Their petition for writ of mandamus is denied. Defendant board should refund their payment or deposit of $255. A public question being involved, no costs are allowed.
North, C. J., and Wiest, Butzel, Bushnell, Sharpe, Boyles, and Reid,. JJ., concurred. | [
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Adams, J.
On August 16, 1968, upon a motion by the prosecuting attorney for waiver of jurisdiction of Andrew Fields on petitions for uttering and publishing of checks and breaking and entering, the Probate Judge for Washtenaw County ruled as follows:
"The Court: I rule that, on the testimony that has been presented, that a prima facie case has been made out on both petitions. The question of fact in the situation is something that, of course, has to be proven before a jury or a judge. But the record, as presented by the prosecuting attorney, would, if there were a magistrate, if there were a preliminary examination, would, I am certain, warrant the binding of someone to Circuit Court; if this was presented, that certainly it would be submitted to the jury.
"So I do rule at this time that the matter has been made out.
"The next question is whether or not the Court should retain jurisdiction or whether or not it should waive the jurisdiction to a higher court.
"The basis upon which this is done is contained in Downs, Michigan Juvenile Court: Law and Practice.
"The ultimate question is not solely whether the juvenile may be rehabilitated through the facilities of the Juvenile Court. And the Court, of course, does have the responsibility to determine whether everything that could be done for the individual in the Juvenile Court has been done. Also, whether or not the particular individual is so mature that the facilities of the Juvenile Court cannot aid, and their cases must be referred to criminal courts.
"There are three tests that apply there:
"(1) 'Where the nature of the offense which in itself was of such an obviously adult character as to make the juvenile court inappropriate.’ \
"(b) 'Where the court has made use of every available disposition and the minor has been unamenable to treatment.’
"And (c) 'Where the minor whose physical and mental development showed a maturation beyond the calendar age and which made the minor unwilling to accept treatment as a minor.’
"Now, my ruling is that these tests have been met, and I am ordering that the matter be referred to the Circuit Court.
"In support of that ruling, I will give you the reason for it.
" 'Where the nature of the offense was in itself of such an obviously adult character as to make the juvenile court inappropriate.’ I think it has been shown, after all, that this was not just a case of sudden impulse. This was a rather planned breaking and entering; that the theft was not of money but of a check protector; the developing of the checks; the writing of them, all of this is, in my judgment, of a mature character, to make the Juvenile Court inappropriate.
"It is mature.
" 'Where the court has made use of every available disposition and the minor has been unamenable to treatment.’ We have had Andy on probation for years. He has not responded to it. It is true there is one facility which the Court would not use, that is the training school. I will go into that in a moment. That would be the only thing that is left, if there were a conviction in this case.
"Second, 'A minor whose physical and mental development showed a maturation beyond calendar age and which made the minor unwilling to accept treatment as a minor.’ After all, the record has shown he is over 15 years old, very close to 17 years old; he is married; and his response, actually, to the efforts that the Court has made, the social worker has made, has not been effective.
"But I think beyond that, the defendant did, it was indicated in the previous hearings, feel that a trial was necessary. I think we should recognize there is a denial and a demand for trial. I think the question whether this Court can give him the type of trial that this particular serious matter deserves. And I cannot, under the law, provide for a jury trial, other than by a six-juror panel. Six people determined by the sheriff’s department. On the other hand, the Circuit Court does have the authority to offer him a trial by a jury of 12 people, under the provisions of the Circuit Court.
"In the previous hearing, it was stated here that the desire was for an open court, a 12-man jury, and for one open to the news media. Of course, this is inconsistent with the philosophy, and for the ability, actually, of the Juvenile Court to provide. If the ultimate decision in this case, trial in this case, results in an acquittal, certainly the court that is best equipped to provide the fairest trial, that of a 12-man jury, should be afforded.
"Now, on the other hand, if it should result in a conviction, the only this [sic] this Court could do, if it should remain in Juvenile Court, the only disposition left would be commitment to the training school. And this would mean that I would have to commit a person close to 17, who is married, whom, I understand, his wife is expecting a baby, to the training school. I would have no other alternative because the probationary order has not proven effective. Secondly, the other possibility, of course, would be a school like Boy’s Republic. This, I think, would be rejected, at least.
"On the other hand, if the allegations were sustained in the Circuit Court, then they do have the facilities of adult probation, also the provisions relative to adult young offenders, which would, of course, be a responsibility of the judge in the Circuit Court to make whatever disposition he felt appropriate, but he does have these facilities that this Court does not have.
"I regret it when I say that there has not been more response to the efforts that have been made, and the efforts of Mr. Newhouse, but since there were not, since we have a serious matter before us, since there is a denial and since there are limitations upon which this Court could do as far as Andrew Fields is concerned, the order is that the matter be waived to Circuit Court in both cases.”
The issue as to whether the probate judge had authority to waive Andrew B. Fields to circuit court for trial as an adult was considered by the circuit court. On December 27, 1968, that court held:
" * * * There is a question in the Court’s mind whether or not the fact that the statute does not set forth any guide-lines for the juvenile judge to follow in making a decision as to whether or not to waive the minor to circuit court for trial to some extent bothers the Court as to whether or not it is a constitutional statute ***.*** I think in view of the fact that Judge O’Brien did make his findings and that the findings comply with the reasons given in the Kent case, that, therefore, the Court will have to find that the statute under which Mr. Fields was bound over in this case does comply with the necessary constitutional requirements * * * .”
On April 24, 1969, the Court of Appeals denied leave to appeal. On January 26, 1970, this Court granted leave and remanded the matter to the Court of Appeals for a determination as on grant by that Court of defendant’s application for leave to appeal. The Court of Appeals (30 Mich App 390 [1971]) held that (p 392):
"Although the Kent decision enunciated certain standards which must be met in order to satisfy the requirements of due process and fairness, the Court did not hold that a statute which failed to enumerate the standards is constitutionally defective.”
The Court concluded (p 393):
"After a careful review of the record, we are of the opinion that the waiver proceedings in the instant case were in accord with the basic requirements of due process and fairness, as well as our juvenile court act.”
Application for leave to appeal to this Court, filed March 4, 1971, stated:
"The sole issue involved in this litigation is whether or not the statute allowing probate courts to waive jurisdiction over certain juveniles is void on its face, and the attack is based solely on the theory that the statute is void because it lacks standards for determining whether or not the probate court should waive jurisdiction. * * *
"The legislature, by Act 288, P. A. 1939 (Sec. 27.3178 (598.1) et seq. Mich Stats Anno) sought to protect juveniles from the consequences of prosecution in our criminal courts by setting up the juvenile court system. Whether or not a probate judge has power to deny a particular juvenile the advantages of the protection of the statute is certainly a matter of major significance to the jurisprudence of Michigan.”
In an Amicus Curiae Brief of Michigan Probate and Juvenile Court Judges Association filed by Mary Coleman, Judge of Probate of Calhoun County and President of said Association, the issue in this case is succinctly stated as follows:
"The principal issue being argued in this case is the extent to which the legislature may delegate power to another body or agency. Such delegation must include sufficient standards so as to obviate any delegation of legislative power. The legislature may not delegate the power to make laws.” (Emphasis added.)
The statute with which we are concerned (MCLA 712A.4; MSA 27.3178 [598.4]) states:
"In any case where a child over the age of 15 years is accused of any act the nature of which constitutes a felony, the judge of probate of the county wherein the offense is alleged to have been committed may, after investigation and examination, including notice to parents if address is known, and upon motion of the prosecuting attorney, waive jurisdiction; whereupon it shall be lawful to try such child in the court having general criminal jurisdiction of such offense.”
The Washtenaw County prosecutor has also cited section 1 of the chapter of the Probate Code dealing with juveniles and the juvenile division (MCLA 712A.1; MSA 27.3178 [598.1]), which states in part as follows:
"Sec. 1. * * *
"This chapter shall be liberally construed to the end that each child coming within the jurisdiction of the court shall receive such care, guidance and control, preferably in his own home, as will be conducive to the child’s welfare and the best interest of the state and that when such child is removed from the control of his parents the court shall secure for him care as nearly as possible equivalent to the care which should have been given to him by them.”
The amicus brief, also citing the above chapter, argues that the juvenile code must be considered as a whole, and states:
"In addition to those set forth above, the statutory standards include the following:
"(a) The subject must be a child over the age of 15. Further, a person is charged as an adult in the event he is charged with a criminal offense and has reached his 17th birthday.
"(b) The subject must be accused of an act the nature of which constitutes a felony. (A petition is described in 712A.11).
"(1) The definition of a felony is provided in the criminal law statutes and cases.
"(2) The definition of the alleged felony in question is contained in the criminal law statutes and cases.
"(c) The officer to hear the matter must be the judge of probate of the county wherein the act is alleged to have taken place.
"(d) An investigation must be made.
"(e) A motion must have been made by the prosecuting attorney.
"(f) Notice must be given.
"(1) The manner of giving notice is set forth more fully in 712A.12 and 712A.13.
"(g) An examination (hearing) must be held.
"(h) The child’s right to have an attorney present is described in 712A.17.”
While all of the above are in accord with general concepts of due process, none of the enumerations go to the issue of standards except the age of the child and the nature of the offense.
The probate judge, as appears from his quoted opinion, carefully, thoroughly and conscientiously set forth well-considered reasons for taking the action he did. However, the circuit judge was unable to find in the statute any guidelines for the juvenile judge to follow. As for the guidelines, the prosecutor tells us:
"In Michigan, once the facts of the situation are shown to come within the provisions of MSA 27.3178 (598.4) it is assumed that the standard which will guide the Court in determining whether or not to waive jurisdiction will be that portion of MSA 27.3178 (598.1) quoted above, with the primary emphasis on 'the child’s welfare and the best interest of the state.’ ”
The attorney for defendant, in the conclusion of his brief, states:
"An appellate court cannot meaningfully review the action of another body or person unless it has something to measure that action against. The courts are charged with seeing to it that each litigant enjoys the equal protection of the laws, and without standards of conduct for the Judge of Probate, an appellate court cannot tell whether equality of treatment is being afforded and counsel cannot sensibly present either side of such a case.”
It is important to understand the precise issue in this case. It is not whether the constitutional requirements of due process stated in Kent v United States, 383 US 541; 86 S Ct 1045; 16 L Ed 2d 84 (1966), were met. Rather, it is whether the lack of standards in the statute preclude a waiver proceeding.
We begin with a basic classification by the Legislature of all persons under 17 years of age as juveniles. Under this classification, Andrew Fields could have been subjected to confinement at the Boys’ Vocational School for less than four years. Standing trial as an adult, he would be subject to punishment by imprisonment in a penitentiary for up to 14 years. (1948 CL 750.249; MSA 28.446). Absent carefully defined standards in the statute itself which would justify such disparity of treatment, there is no way by which it can be determined what standard a probate judge should apply in a waiver proceeding. He might use the standards used by Judge O’Brien. He might use the standard contended for by the prosecutor — "the child’s welfare and the best interest of the state.” This standard is so vague and subject to so many possible interpretations as to be no standard at all. He might formulate his own standard for review by the appellate courts of this state on a case-by-case basis. He might apply the standards set forth in JCR 1969, 11.
I agree with Justice Black "that a statute, invalid for want of standards according to the constitutional rule * * * [cannot] be validated by any rule of Court which, although in itself well within the constitutional powers of the Court, undertakes to supply what the statute does not.” Devereaux v Township Board of Genesee Twp, 211 Mich 38 (1920), involved a statute providing for the issuing of permits by a township board for the conducting of poolrooms, dance halls, etc. The Court said (p 43):
"The statute in question provides no method for the application for licenses, contains no qualifications which the applicant must possess, provides no standard of fitness, makes no provisions as to the character of the structure or equipment to be used in the business regulated. It, in fact, attempts to confer upon the township board the arbitrary power to grant or refuse a license, according to its whim or caprice. Under all the authorities, we think this cannot be done.”
Statutory defects, as this Court noted in Rassner v Federal Collateral Society, Inc, 299 Mich 206, 215 (1941), " * * * cannot depend upon the grace or favor of the court * * * .” See, also: Burdick v Harbor Springs Lumber Co, 167 Mich 673 (1911); Trellsite Foundry & Stamping Co v Enterprise Foundry, 365 Mich 209 (1961); Ridenour v Bay County, 366 Mich 225 (1962); Milford v People’s Community Hospital Authority, 380 Mich 49 (1968).
If the Legislature is to treat some persons under the age of 17 differently from the entire class of such persons, excluding them from the beneficien! processes and purposes of our juvenile courts, the Legislature must establish suitable and ascertainable standards whereby such persons are to be deemed adults and treated as such subject to the processes and penalties of our criminal law. The statute is unconstitutional because it lacks standards.
I vote to reverse the decisions of the lower courts.
T. M. Kavanagh, C. J., and T. E. Brennan, T. G. Kavanagh, Swainson, and Williams, JJ., concurred with Adams, J.
Black, J.
(for affirmance). The reviewable question is whether 1948 CL 712A.4; MSA 27.3178 (598.4) is unconstitutional for want of standards governing probate determination of how a juvenile over the age of 15 years, accused of any act the nature of which constitutes a felony, may be waived to circuit court for trial. Division 2, having examined Kent v United States, 383 US 541; 86 S Ct 1045; 16 L Ed 2d 84 (1966) responded as follows (People v Andrew Fields, 30 Mich App 390, 392-393):
"The Court, in Kent, did not hold that the statute was unconstitutional, but rather held that the procedure by which the waiver was obtained failed to satisfy constitutional principles relating to due process and the assistance of counsel. In the instant case however, the record reveals that the defendant was provided a hearing as well as the assistance of counsel. The defendant’s counsel was given notice of the hearing and provided access to all necessary records. The court listed reasons in support of its decision to grant waiver. The standards enumerated in the Kent decision were fully satisfied in the instant case.”
Upon application of defendant this Court granted review (384 Mich 833).
At the outset it should be noted that, prior to submission of defendant’s appeal in the Court of Appeals, this Court after considerable study and review of successive drafts adopted the Juvenile Court Rules of 1969 (381 Mich cv-cxxxv). These rules were made effective March 1, 1969 and conclude with "Rule 11. Waiver of Jurisdiction”.
It is unnecessary to reproduce Rule 11 here beyond pointing to the italicized headings of each division and the primary subdivisions thereof.
The Rule is headed "Hearing; Quantum of Proof; Criteria for Waiver”.
Subdivisions (A) and (B) of .1 are headed respectively "Phase 1: Showing of Probable Cause” and "Phase 2: Criteria for Waiver”.
.2 is headed "Notice of Waiver Hearing”.
.3 is headed "Right to Counsel”.
.4 is headed "Access to Social Reports”.
.5 is headed "Waiver Hearing Procedure”.
.6 is headed "Waiver Order; Written Statement”.
Then, at the conclusion of Rule 11, there appears the following (authorized by the Court):
"Notes: Requirement of a finding of probable cause in waiver proceedings appears to have been held in Green v United States [1962], 113 US App DC 348 [308 F2d 303], and appeared to be the conclusion of conference and committee discussion. Notice provisions are drawn from requirements of In re Gault [1967], 387 US 1 [87 S Ct 1428; 18 L Ed 2d 527], and provisions for the right to counsel, access to social records, and written statements of findings from Kent v United States [1966], 383 US 541 [86 S Ct 1045; 16 L Ed 2d 84].)”
Thus this Court has already read section 712A.4 as the Supreme Court in Kent has read the corresponding provision of the DC Code, that is to say, "[w]e believe that this result is required by the statute read in the context of constitutional principles relating to due process and the assistance of counsel.” (Kent at 557.)
By the foregoing I do not mean to suggest that a statute, invalid for want of standards according to the constitutional rule, may be validated by any rule of Court which, although in itself well within the constitutional powers of the Court, undertakes to supply what the statute does not. It is submitted only that section 712A.4 comes within and is authorized by a well recognized exception to the rule prohibiting delegation of legislative powers. Here that exception is made by an express mandate of the Constitution declaring that the probate court and the judges thereof "shall have original jurisdiction in all cases of juvenile delinquents and dependents, except as otherwise provided by law” (Const 1963, art 6, § 15), in pursuance of which the Legislature by section 712A.4 has not attempted to delegate to the probate court the power to make a law or laws but, rather, has conferred upon that court "a mere legal discretion which is exercised in discerning the course prescribed by law and which, when discerned, it is the duty of the court to follow.”
Applying this to the issue at bar, I conclude that section 712A.4 is valid as against the attack made thereon. As for questions posed under Kent v United States, supra, it is sufficient to say that Kent did not hold the corresponding District of Columbia statute unconstitutional. The Supreme Court did remand for a hearing de novo of the statutory issue of waiver of jurisdiction by the Juvenile Court, "consistent with this opinion”, (p 565.) It did so with clear implication that the DC statute, valid despite the Court’s observation obiter (that "[i]t [the statute] states the circumstances in which jurisdiction may be waived and the child held for trial under adult procedures, but it does not state standards to govern the Juvenile Court’s decision as to waiver” [p 547]), should be interpreted and applied as this Court by aforesaid Rule 11 has already provided for section 712A.4. Here there is no occasion for remand, the parties having assured us by stipulation that the not as yet tried Mr. Fields — unlike the tried and convicted Mr. Kent — will not be tried.
I vote to affirm.
Section 712A.4 was former section 26 of chapter XII ("Juveniles and Juvenile Division”) of The Probate Code of 1939, No 288. Amended since in respects of no instant interest, it reads:
"Sec. 4. In any case where a child over the age of 15 years is accused of any act the nature of which constitutes a felony, the judge of probate of the county wherein the offense is alleged to have been committed may, after investigation and examination, including notice to parents if address is known, and upon motion of the prosecuting attorney, waive jurisdiction; whereupon it shall be lawful to try such child in the court having general criminal jurisdiction of such offense.”
Our action was unanimous. The minutes of our December 2-5, 1968 conference read ("Re Juvenile Court Rules”):
"Moved by Justice Adams, supported by Justice Kavanagh, that the Juvenile Court Rules be adopted, to be effective March 1, 1969. Carried unanimously. A copy of the Rules so adopted is attached hereto.”
The quotation is taken from the text of 16 Am Jur 2d Constitutional Law, "§ 256. — Vesting discretionary power in judiciary. ”, pp 505-506, which in turn was taken directly from Chief Justice Marshall’s opinion, for the Court, of Osborn v The President etc of The Bank of the United States, 22 US (9 Wheat) 738, 866; 6 L Ed 204 (1824).
For the same text, with greater citation of authorities, see 11 Am Jur Constitutional Law, § 228, pp 942-943.
The conclusion of the first paragraph of the Court’s opinion attests this plainly. It reads (p 543):
"Because we conclude that the Juvenile Court’s order waiving jurisdiction of petitioner was entered without compliance with required procedures, we remand the case to the trial court.” | [
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Per Curiam.
This comes to us on appeal from a decree entered in the Ingham circuit court.
Under Act No. 228, Pub. Acts 1943 (Comp. Laws Supp. 1943, § 2 eí seq., Stat. Ann. 1943 Cum. Supp. §2.23 et seq.), Ingham county was assigned three members of the house of representatives. On April 11, 1944, the board of supervisors of said county undertook to divide the county into representative districts. The division so made included the city and township of Lansing to elect two representatives; the remainder of the county to elect the other representative. The population of Ingham county, according to the last Federal 'census,_ was 130,616. The population of the city of Lansing was 78,753, and of the township of Lansing was 14,274.
The sole question to be decided is, whether the division as made offends against Constitution of 1908, art. 5, § 3. The circuit judge held that the action of the board of supervisors was contrary to the Constitution and entered a decree holding the division by the board of supervisors to be void.
The point at issue has not been previously before this court and the decisions in other States under differently worded constitutional and statutory provisions are of no assistance.
Constitution 1908, art. 5, § 3, requires that representatives shall be chosen by single districts “which shall contain as nearly as may be an equal number of inhabitants.” Section 3 further provides that in every county which is entitled to more than one representative, the board of supervisors shall divide the county into representative districts equal to the number of representatives to which the county is untitled. Article 5, §4, directs the legislature to “apportion anew the representatives among the counties and districts according to the number of inhabitants.” It is significant that in both of these constitutional requirements, namely, the mandate to the legislature to apportion the representatives in the house of the legislature, and the mandate to the board of supervisors to divide into representative districts a county entitled to more than one representative, the Constitution directs that this shall be done as nearly as- may be in accordance with the number of inhabitants. Fundamentally, the objective sought by the Constitution, in providing for the membership in the house of representatives of the State legislature, is that the membership shall be apportioned according to population as nearly as may be. All other provisions of the Constitution in creating the house of representatives must be read with this fundamental constitutional objective in mind.
In the instant case, Ingham county has a population of 130,616. The legislature has decided that Ingham county is entitled to three representatives in the house. This means one representative for each 43,538 inhabitants. The city of Lansing has a population of 78,753, and Lansing township has a population of 14,274. The board of supervisors by joining the city and township with two representatives has, in effect, created a district with a total population of 93,027, thus allowing one representative for each 46,513 population in this combined area. By so doing the board of supervisors has left the remaining area of Ingham county, with a population of 37,589, to be represented by one representative. This appears to approximate an equal representation according to the number of inhabitants as nearly as may be practicable. Were the city of Lansing to be constituted with two representatives, it would result in one representative for each 39,376 inhabitants within the city, and leave only one representative for 51,863 inhabitants in the rest of the county. Obviously this would not accomplish three representative districts containing “as nearly as may be” an equal number of inhabitants.- On the other hand, the result of giving the city of Lansing only one representative would be that 78,753 inhabitants of the city would be represented by only one member of the house, while the rest of Ingham county with the remaining population of 51,863 would be represented by two members of the house.
The appellees contend that decision should be controlled by the provision in section 3 of article 5 which states that when any township or city shall contain a population which entitles it to more than one representative, such township or city shall elect by general ticket the number of representatives to which it is entitled. The lower court construed this to mean any one township or any one city separately, and concluded that a city or a township having a population entitling it to one or more representatives could not be joined with another for the purpose of creating one or more districts. We are. unable to agree that this theory should control as' against the fundamental objective sought to be accomplished by the Constitution, namely, an equality of representation in the house of representatives apportioned according to population as nearly as may be, equality of representation as the major controlling objective aimed at by the Constitution. The provision in section 3 that a township or city shall elect by general ticket must be construed in harmony with the earlier mandate in section 3 that no township or city may be divided in the formation of a representative district. We emphasize the requirement found in both section 3 and section 4, that rep resentation shall be apportioned according to the number of inhabitants as nearly as may be. There is no express inhibition in the Constitution prohibiting the joining of a township and a city in a representative district, nor can such an inhibition be necessarily implied. We conclude that the division of territory by the board of supervisors accomplishes the objective sought by the Constitution.
The decree of the lower court is set aside and a decree may be entered in this court upholding the constitutionality of the action of the board of supervisors. A public question being involved, no costs are awarded.
North, C. J., and Starr, Wiest, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Adams, J.
I agree with Justice T. G. Kavanagh that the provisions of § 115(d) of 1969 PA 317 (MCLA 418.115[d]; MSA 17.237[115][d]), violate plaintiffs’ rights to equal protection provided for in the Constitutions of the United States and the State of Michigan.. However, I arrive at this conclusion by a somewhat different route. Certain factual stipulations were entered into at the workmen’s compensation hearing before Referee Johnson on February 16, 1970. They constitute the facts for consideration and determination of the questions involved in this case.
It was stipulated that injuries to plaintiffs occurred while they were working for Glaser Crandell, á packing company; that they were migrant workers; that they were on premises leased by Glaser Crandell at the time they were injured; the number of hours worked by plaintiffs for Glaser Crandell; the dates thereof and the dates of injury; that medical benefits were paid under a voluntary arrangement but no weekly disability benefits were paid. The facts as to plaintiffs’ injuries and whether or not the injuries arose out of or during the course of employment were not determined.
There are no facts in this record from which I can conclude that the classification established by the exceptions contained in the Michigan Workmen’s Compensation Act — "seasonal agricultural workers — is largely composed of Chicanos, Blacks and American Indians.” Nor is there in this record a basis for a finding that: "Seasonal agricultural workers comprise one of the poorest segments of our society. The majority of these workers have earnings which are below the poverty level.” All of these "facts” may be true but they are not facts of which this Court, at this stage in the proceedings, can properly take judicial notice. No effort was made to place these "facts” in the record by requesting that the hearing referee take judicial notice of them or by some other proof. No opportunity was afforded defendant to except to or controvert the taking of judicial notice of these "facts”. To do so now solely on the basis of assertions contained in briefs would be improper since these "facts” are not of such certainty as to permit taking judicial notice of them for the first time in an appellate court. See Winekoff v Pospisil, 384 Mich 260, 268-269 (1970).
Our examination must be confined to the Workmen’s Compensation Act of 1969 (1969 PA 317). Section 111 (MCLA 418.111; MSA 17.237[111]) has two classifications of employers — public and private and a single classification of employees — "every employee”. It reads:
"Every employer, public and private, and every employee, unless herein otherwise specifically provided, shall be subject to the provisions of this act and shall be bound thereby.” (Emphasis added.)
Section 115 of the act (MCLA 418.115; MSA 17.237[115]) is quoted in full in Justice T. E. Brennan’s opinion. It has three classifications of employers — all private employers, all public employers, and all agricultural employers.
Section 151 (MCLA 418.151; MSA 17.237[151]), states:
"(1) The following shall constitute employers subject to the provisions of this act:
"(a) The state and each county, city, township, incorporated village and school district therein and each incorporated public board or public commission in this state authorized by law to hold property and to sue or be sued generally.
"(b) Every person, firm and private corporation, including any public service corporation, who has any person in service under any contract of hire, express or implied, oral or written.” (Emphasis added.)
From the above sections, it can readily be seen that the scheme for workmen’s compensation has radically changed since the enactment of the first Michigan workmen’s compensation act (1912 PA [1st Ex Sess] 10). Then the act was largely an optional one both as to employers and employees. Now the act purports to cover the entire field of employment in both the private and public sectors.
Agricultural employers are dealt with in section 115(d) and (e), MCLA 418.115; MSA 17.237(115). Sections 115(d) and (e) (all agricultural employers), parallel sections 115(a) and (b) (all private employers). The sections, with underlining added for emphasis, are set forth in two columns below for ease in comparing the difference in treatment.
Section 115(a) "All private employers, other than agricultural employers, who regularly employ 3 or more employees at 1 time.”
Section 115(d) "All agricultural employers of 3 or more regular employees paid hourly wages or salaries, and not paid on a piecework basis, who are employed 35 or
Section 115(d) (Cont’d) more hours per week by that same employer for 13 or more consecutive weeks during the preceding 52 weeks. Coverage shall apply only to such , regularly employed employees. The average weekly wage for such an employee shall be deemed to be the weeks worked in agricultural employment divided into the total wages which the employee has earned from all agricultural occupations during the 12 calendar months immediately preceding the injury, and no other definition pertaining to average weekly wage shall be applicable.”_
Section 11503) “All private employers, other than agricultural employers, who regularly employ less than 3 employees if at least 1 of them has been regularly employed by that same employer for 35 or more hours per week for 13 weeks or longer during the preceding 52 weeks.”
Section 115(e) “All agricultural employers of 1 or more employees who are employed 35 or more hours per week by that same employer for 5 or more consecutive weeks shall provide for such employees, in accordance with rules established by the director, medical and hospital coverage as set
Section 115(e) (Cont’d) forth in section 315 for all personal injuries arising out of and in the course of employment suffered by such employees not otherwise covered by this act. The provision of such medical and hospital coverage shall not affect any rights of recovery that an employee would otherwise have against an agricultural employer and such right of recovery shall be subject to any defense the agricultural employer might otherwise have. Section 141 shall not apply to cases, other than medical and hospital coverages provided herein, arising under this subdivision nor shall it apply to actions brought against an agricultural employer who is not voluntarily or otherwise subject to this act. No person shall be considered an employee of an agricultural employer if the person is a spouse, child or other member of the employer’s family, as defined in subdivision (b) of section 353 residing in the home or on the premises
Section 115(e) (Cont’d) of the agricultural employer.
"All other agricultural employers not included in subdivisions (d) and (e) shall be exempt from the provisions of this act.”
Section 155(1) of the act (MCLA 418.155; MSA 17.237[155]), defines an "agricultural employer”. It reads:
"(1) An agricultural employer means one who hires a person performing services:
"(a) On a farm, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management of livestock, bees, poultry and fur-bearing animals and wildlife.
"(b) In the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement or maintenance of such farm and its tools and equipment or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such service is performed on a farm.
"(c) In connection with the production or harvesting of maple syrup or maple sugar or any commodity defined as an agricultural commodity or in connection with the raising or harvesting of mushrooms or in connection with the hatching of poultry or in connection with the operation or maintenance of ditches, canals, reservoirs or waterways used exclusively for supplying and storing water for farming purposes.
"(d) In handling, planting, drying, packing, packaging, processing, freezing, grading, storing or delivering to storage or to market or to a carrier for transporta tion to market, any agricultural or horticultural commodity but only if such service is performed as an incident to ordinary farming operations or in the case of fruits and vegetables as an incident to the preparation of such fruits or vegetables for market. The provisions of this subdivision shall not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption.
"(2) As used in this section, farm includes stock, dairy, poultry, fruit, fur-bearing animals and truck farms, plantations, ranches, nurseries, ranges, greenhouses or other similar structures used primarily for the raising of agricultural or horticultural commodities and orchards.” (Emphasis added.)
In Fox v Employment Security Commission, 379 Mich 579, 589 (1967), it was said:
"' "Legislation which, in carrying out a public purpose for the common good, is limited by reasonable and justifiable differentiation to a distinct type or class of persons is not for that reason unconstitutional because class legislation, if germane to the object of the enactment and made uniform in its operation upon all persons of the class to which it naturally applies; but if it fails to include and affect alike all persons of the same class, and extends immunities or privileges to one portion and denies them to others of like kind, by unreasonable or arbitrary subclassification, it comes within the constitutional prohibition against class legislation.” ’ ”
In DeMonaco v Renton, 18 NJ 352; 113 A2d 782 (1955), a newsboy was injured in an automobile accident. The Workmen’s Compensation Act contained an exclusionary clause which stated that a person selling newspapers should not be considered as an employee. He was denied recovery by the Workmen’s Compensation Divisiop. On appeal, the Supreme Court found that the exclusionary clause regarding the sale of newspapers would include store clerks. Other clerks in the same store who did not sell newspapers would be covered while those who did, even though incidentally, would not. In finding the exclusion to be unconstitutional as in violation of equal protection, the Court said, "[t]he product which they are handling, newspapers and magazines, affords no logical reason for their separate classification.” (p 360.)
In Washington National Ins Co v Board of Review, 1 NJ 545; 64 A2d 443 (1949), the Unemployment Compensation Act excluded agents of insurance companies, exclusive of industrial life insurance agents. This classification was found to have no rational basis. The Court said:
"What we have is a subdivision of a wholly natural class without any reason whatever related to the service of the statutory object or the public interest in any of its diverse manifestations.” (p 555.)
In Burch v Foy, 62 NM 219; 308 P2d 199 (1957), a minimum wage act required variety store employees to be paid 75 cents per hour minimum but permitted drug store employees to be paid 50 cents per hour minimum. The Court found this classification to be arbitrary and oppressive because of lack of uniformity within the class.
Turning back to the present case, from an examination of the definition of "agricultural employer” (section 155[1]), it will readily be seen that it includes all possible kinds of work "on a farm,” such as plowing, planting, harvesting, maintenance of machinery, bookkeeping, processing, canning, raising cattle or other livestock. The work can vary from the most menial (digging ditches) to the most exacting (expert cross-pollination of plants or flowers) as long as it is "on a farm.”
There is no basis for distinguishing the work of a laborer who drives a truck at a factory from a laborer who drives one on the farm or for any one of numerous other labor activities "on the farm” as distinguished from the same activity in industry, wholesaling, retailing, or building. There is no basis for singling out for an exclusion piecework "on the farm” but not elsewhere. There is no basis for a special definition of "weekly wage” for farm labor as distinguished from any other type of labor. "All private employers” come under the act if they regularly employ three or more employees at one time. On the other hand, only "agricultural employers” who employ 3 or more employees, not on piecework, 35 or more hours per week by the same employer for 13 or more weeks during the preceding 52 weeks come under the act.
Nor are the exclusions from the act allowed agricultural employers under § 115(d) remedied by the treatment accorded agricultural employees under § 115(e). It sets up a special classification; employers of 1 or more employees who are employed 35 or more hours per week by that employer for 5 or more consecutive weeks. The employer must accord those employees certain medical and hospital benefits if they are not otherwise covered by the act.
If the argument is that this creates special benefits for a class of agricultural workers not covered under § 115(d), then it is clearly discriminatory as to all other employees in private employment who are not covered under 115(a) or (b). If the argument is that the benefits are illusory since the class created is next to non-existent, then the exclusions under § 115(d) are all the more to be condemned.
Finally, the argument that § 115(e) is especially tailored to meet the problems of the small farmer and his occasional employees fails to account for the need for similar treatment as to the small businessman — grocer, clothier, butcher — or as to the small contractor — plumber, carpenter, roofer— or as to numerous other categories of small employers and their employees who are not accorded this treatment.
From the above, it will be seen that while Justice T. G. Kavanagh posits the reasonableness of the agricultural classification, in order to consider the propriety of the subclassification of "agricultural workers” which results from the exclusion of certain of them from coverage, my difficulty is with the classification of agricultural employers. Agricultural employers, regardless of the skills of their employees or the activities engaged in, are accorded a special treatment and classification of their employees not accorded any other private or public employer. Such treatment is impermissible, clearly discriminatory and has no rational basis.
I vote to reverse and remand to the Workmen’s Compensation Commission for determination of plaintiffs’ claims.
I would award costs to plaintiffs.
T. M. Kavanagh, C. J., and Black and Swain-son, JJ., concurred with Adams, J.
T. G. Kavanagh, J.
Justice Adams’ opinion concludes that on its face MCLA 418.115(d); MSA 17.237 (115)(d), denies equal protection of the laws to those persons thereby excluded from coverage under Michigan’s workmen’s compensation law. He writes "such treatment is impermissible, clearly discriminatory and has no rational basis”. We agree that such treatment is impermissible and discriminatory. We concur in the decision to "reverse and remand to the Workmen’s Compensation Commission for determination of plaintiffs’ claims”.
Our vote to reverse and remand, however, is based upon our persuasion that there is a rational basis for the distinction drawn by the statute between agricultural and other employees, but the distinguishing provisions are otherwise invalid under the United States and Michigan Constitutions.
We granted leave in this case to review a decision of the Court of Appeals holding the exclusion of certain agricultural workers from the Workmen’s Compensation Act was constitutional.
The facts giving rise to the question are not complicated.
Plaintiff Frank Gallegos is a Mexican-American, 38 years old. On August 2, 1967, while in the employ of defendant Glaser Crandell, Gallegos fell and sustained a fractured wrist on defendant’s property. Plaintiff Mary Gutierrez, also in the employ of Glaser Crandell, sustained a fall on the same property on August 13, 1967. She received injuries to her left leg and back. Both plaintiffs are agricultural workers whom defendant employed on a seasonal basis.
After defendant refused to pay workmen’s compensation benefits voluntarily, plaintiffs filed an application with the Bureau of-Workmen’s Compensation and asked for a hearing. Both plaintiffs and defendant requested a ruling on the constitutionality of certain portions of the Workmen’s Compensation Act. The hearing referee determined that he was without authority to rule on this issue. On appeal, the Workmen’s Compensation Appeal Board held that they too were unable to rule on the constitutionality of the statute.
Plaintiffs raise two major issues on appeal. First, whether the exclusionary provisions of MSA 17.237 (115)(d) violate plaintiffs’ right to equal protection under the law as provided in the Constitutions of the United States and the State of Michigan. Second, whether the exclusionary provisions of MSA 17.237(115)(d) place an unconstitutional burden on plaintiffs’ freedom of travel.
Plaintiffs argue that the exclusion from workmen’s compensation benefits of those agricultural workers who are paid on a piecework basis, and those agricultural workers who do not work 35 or more hours per week for the same employer for 13 or more consecutive weeks, denies those workers the equal protection of the laws. They claim that the exceptions set forth in the statute result in the establishment of a class and the invidious discrimination against the members of that class.
We are not here concerned with the division of workers into "industrial” and "agricultural” classes. We posit the reasonableness of such classification in order to consider the propriety of the subclassification of "agricultural” workers which results from the exclusion of certain of them from coverage. We note that the exceptions contained in the statute do establish two separate subclasses— those agricultural workers covered by the act and those not covered by the act on account of such exceptions. It is not disputed that this latter group are seasonally employed and we will hereafter refer to them as "seasonal workers”.
When classification is alleged to deny an individual equal protection of the law, such classification, as a general rule, must be shown to be unreasonable. In determining reasonableness courts usually express as a standard the equivalent of:
" '[A] distinction in legislation is not arbitrary, if any state of facts reasonably can be conceived that would sustain it.’ ”
However, if the class affected is one limited by race, religious creed, or political beliefs, the classification is considered to be "inherently suspect”, and a compelling governmental interest must bp shown if the classification is to be sustained. Similarly if the interest affected is one considered "fundamental” such as the right to vote, a compelling governmental interest must be shown.
The doctrine of "inherently suspect” classifications has developed with regard to those classes or groups which have traditionally been the target of discrimination. When such a class is affected by the legislation, the constitutional infirmity asserted can be avoided only upon a showing of a compelling state interest which justifies the law. Legislation affecting particular racial groups is always viewed with suspicion and subjected to the closest scrutiny.
Similarly, our society views those interests termed "fundamental” with such esteem, that their restriction by classification can only be sanctioned upon the demonstration of a compelling state interest.
If the disparate treatment were expressly based on race, for example, if the statute excluded Chicanos, Blacks and American Indians from coverage as agricultural workers, we would have no difficulty in finding it invidiously discriminatory absent a demonstration of a compelling state interest in such disparate treatment.
The classification in Michigan’s statute however appears to have a rational basis in light of the difficulty of administering the act involving such a mobile labor force. In this circumstance we must look to its impact. A court is not confined to a sterile examination of the statute itself, but must look to its effect. Such effect alone may dictate a finding that equal protection has been denied. This is true because when a classification is made by a statute we must look first to its reasonableness and then to its effect — direct and indirect. If the effect is direct we have little trouble in determining discrimination. If the direct effect is not constitutionally offensive however, we must look for any indirect effect. An indirect effect is no more legitimate than a direct effect, and we must assay the effect apart from the purpose. "The existence of a permissible purpose cannot sustain an action that has an impermissible effect.”
It is not disputed that the classification established by the exceptions contained in Michigan’s Workmen’s Compensation Act which we are considering here — seasonal agricultural workers — is largely composed of Chícanos, Blacks and American Indians.
Seasonal agricultural workers comprise one of the poorest segments of our society. The majority of these workers have earnings which are below the poverty level. Indeed such earnings are often less than would be received if the workers went on welfare. While a classification based on wealth alone has never been held to be "inherently suspect”, wealth is a factor which is given great weight in determining whether there has been a denial of equal protection. Furthermore, the combination of wealth and a possible fundamental interest as found in Shapiro, supra gives propriety to this consideration.
In any particular application, the concept of equal protection is not capable of precise definition. It cannot be confined by rigid standards and analytical techniques. Thus an amalgam of factors, no one of which, if taken by itself would require a showing of compelling interest, in our view might well require it.
This is particularly true since as we have said, an equal protection examination may properly focus on the effect of governmental activity, as well as on the purpose.
No compelling governmental interest that would justify the exclusion from workmen’s compensation of those agricultural workers who are paid on a piecework basis and those agricultural workers who work less than 35 hours per week and/or 13 consecutive weeks for the same employer has been demonstrated.
It is true, as plaintiffs argue, that agriculture has changed considerably in the past 50 years. Mechanization and the consolidation of small farms into large tracts require the area to be viewed with an entirely new perspective. Indeed the term "farming” may have given way to "agricultural industry”. The fact that seasonal agricultural workers are hired for a particular job is not determinative. Such practice is common in other industries, particularly the construction industry. Such small farms that still exist are not practically distinguishable from any other small, family operated business. Yet the exceptions applicable to agricultural workers are unique to that field, and are not carried over to other private employment.
Defendant argues that the administrative burden placed upon the agricultural employer would be too great. However, such employer already must meet the requirements of withholding tax and social security to name just two. It is also highly questionable whether the cost burden placed on the agricultural employer would be as onerous as defendant claims. Even if true however, this would not constitute a compelling governmental interest. Discriminatory legislation such as we have here cannot' be validated in the interest of preferring a particular industry.
We conclude that no compelling state interest has been shown. Therefore, those portions of the statute excepting piecework employees, and those excepting persons not employed 35 hours a week for 13 consecutive weeks for the same employer are in violation of US Const, Am XIV and Const 1963, art 1, § 2. Therefore these sections are stricken from the statute.
Having reached the above conclusion, we find it unnecessary to express opinion whether the statute violates plaintiffs’ right to travel.
Reversed and remanded to the Workmen’s Compensation Commission for determination of the claim.
No costs, a matter of public interest.
34 Mich App 489 (1971).
MCLA 418.115(d)
"(d) All agricultural employers of 3 or more regular employees paid hourly wages or salaries, and not paid on a piecework basis, who are employed 35 or more hours per week by that same employer for 13 or more consecutive weeks during the preceding 52 weeks. Coverage shall apply only to such regularly employed employees. The average weekly wage for such an employee shall be deemed to be the weeks worked in agricultural employment divided into the total wages which the employee has earned from all agricultural occupations during the 12 calendar months immediately preceding the injury, and no other definition pertaining to average weekly wage shall be applicable.”
US Const, Am XIV.
Const 1963, art 1, § 2.
New York Rapid Transit Corp v New York, 303 US 573; 58 S Ct 721; 82 L Ed 1024 (1938).
Harlan dissent, Shapiro v Thompson, 394 US 618; 89 S Ct 1322; 22 L Ed 2d 600 (1969).
Yick Wo v Hopkins, 118 US 356; 6 S Ct 1064; 30 L Ed 220 (1886).
Wright v Emporia, 407 US 451; 92 S Ct 2196; 32 L Ed 2d 51 (1972).
Real, "Socio-Cultural Patterns Among Michigan Migrant Farm Workers,” Rural Manpower Center Special Paper No 2, Michigan State University (1967). Amicus brief p 33.
U S Department of Labor Manpower Study — 1966.
Harper v Virginia Board of Elections, 383 US 663; 86 S Ct 1079; 16 L Ed 2d 169 (1966).
California and Ohio, two states wherein numerous migrant workers are employed, provide coverage for them without apparent detriment to agricultural employers. | [
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Butzel, J.
Edward M. Chapman, administrator of the estate of ^Marie Chapman, deceased, plaintiff, sought to recover $2,500 from' Russell Chapman, defendant, .which sum plaintiff claims decedent loaned defendant in 1946, • Plaintiff claimed that Dorothy Yieau, one of the children of decedent and Edward M. Chapman, was a material witness and gave notice of the taking of her deposition in Syracuse, New York. At the time and place the hearing was noticed for, counsel for both plaintiff and défendant were present and waited for Mrs. Yieau to appear. She sent word that she would not appear at any time so the deposition was not taken. Plaintiff claims that he had no idea that Mrs. Vieau would refuse to testify.
Defendant moved to tax costs in accordance with Court Rule No 31, § 2 (1945), and the motion was gr anted.' 'The rule reads as follows:
“When due notice of taking a deposition is given, and the party giving such notice fails to appear, or, having taken such deposition, fails to file the same, all reasonable expenses actually incurred by the party receiving such notice by reason thereof shall be taxed by the court on motion, and the payment thereof shall be' ¿'condition precedent to such party proceeding with his cause of action or defense.”
Plaintiff contends that his appearance at the time and place noticed for the taking of deposition was a .legal appearance; that the failure of the witness to appear was due to causes beyond .his control and not chargeable to him; that there was consequently no reason for the costs incurred by defendant through sending his attorney to attend the taking of the deposition to he taxed against him. We find, however, that for the purposes of the-court rule a legal appearance means an appearance by the moving party and his witness. - <
It will be noted that Edward M.- Chapman; as administrator and not individually, is the plaintiff. Whether he can be held personally liable or not is not before us. The order entered provides that no further proceedings shall be taken in the cause until the costs have been paid. The court allowed $348.75 costs for legal fees in connection with the preparation of questions,, travel expenses and at-; tendance in Syracuse, New-York. No question is raised as to the reasonableness of these fees. The order was entered in accordance with- the rule heretofore quoted. We find no error.
The order is affirmed, but without costs in .this Court, as appellee filed no brief.
Dethmers, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
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Adams, J.
Plaintiffs are the land contract purchasers of 40 acres of land upon which there is situated a portion of a small, spring-fed pond having a total area of 3 to 4 acres. The prior codefendants, Mr. and Mrs. Hoffman, are the owners of property immediately to the north of plaintiffs. A portion of the pond is located upon their property.
Before 1967, Reycraft Road stopped at the western edge of the pond. It was a two-rut dirt road running east and west and was bounded on both sides by woods. Prior to 1935, people got to Walloon Lake, just beyond and to the east of the pond, by Reycraft Road and by walking across the pond in winter or by walking or taking a wagon road around the southern and eastern portions of the pond, with the owners’ permission. For at least 35 years the southern route has been fenced off.
In 1935, Reycraft Road was incorporated into the county road system by the Board of County Road Commissioners. The resolution of incorporation described the road as extending to the east beyond the pond. Defendant Board of County Road Commissioners maintained that Reycraft Road extended to Walloon Lake either by the southern route or across the pond.
In the fall of 1966, it became apparent to plaintiff William Bauerle that the Road Commission might be intending to extend Reycraft Road across the pond. He made a trip to see Mr. Fitzgerald, the engineer for the Commission, and subsequently wrote him a letter confirming their conversation concerning the Commission’s intentions in this regard, requesting that the Commission not make the fill.
However, stumps, fill and debris were dumped into and pushed across the pond during the Bauerles’ absence sometime in the spring of 1967. The result was an extension of Reycraft Road over the pond and to the shore of Walloon Lake.
Prior to this road extension, swans occupied the pond and pike used the fresh spring-fed waters as a spawning bed. After the fill, the pond became stagnant and the swans and fish left. The surrounding land became littered from the public use of the area.
On October 10, 1967, plaintiffs filed a complaint against defendant Board, contending that neither defendant nor its predecessors had any title to the lands between the end of Reycraft Road and the shore of Walloon Lake, including the submerged lands in plaintiffs’ pond, and that defendant’s claim of title constituted a cloud on plaintiffs’ title, diminishing its value and preventing plaintiffs from enjoying their riparian rights in the pond. By an amended bill of complaint, plaintiffs asked for a mandatory injunction requiring defendant to remove the fill and refrain from further trespass.
On November 6, 1968, Mr. and Mrs. Hoffman were added as defendants. Trial was before Judge Charles L. Brown. The Hoffmans were dismissed as defendants upon stipulation that they would allow people to enter upon their property to remove the fill should plaintiffs be successful.
Judge Brown ruled that defendant had failed to prove that Reycraft Road ever extended to Walloon Lake; the public use of plaintiffs’ property to get to Walloon Lake had been a permissive use only; and the county’s description of the road as longer than it really was did not establish the extension as a matter of law. The court concluded that the action of defendant was a taking without due process and without compensation. Sixty days were allowed the parties to work out an amicable settlement.
The parties could not agree. The court issued a supplemental opinion in which it found that plaintiffs owned the southern portion of the pond, that the pond was navigable, and that plaintiffs possessed riparian rights in it. The court ordered defendant to remove the fill or to construct a large culvert for movement of water and of boats between the two halves of the pond. Defendant was directed to maintain the area so that the pond could return to its fresh water condition.
Plaintiffs appealed to the Court of Appeals. It adopted the two opinions of the circuit court. (34 Mich App 475.) Plaintiffs’ application for a rehearing was denied August 3, 1971. On appeal to this Court, we remanded the case to the circuit court for a factual finding as to whether the Board’s action constituted a taking in contravention of the Constitution of 1963, art 10, §2, and if such a taking had occurred, the circuit court was directed to delete from its judgment the alternative relief concerning a culvert. (386 Mich 764.)
Upon remand, the circuit court filed a second supplemental decision (December 6, 1971), finding that there was not a "taking” since none of the fill was deposited on plaintiffs’ lands nor were trees removed from plaintiffs’ lands. The trial court reasoned:
"In the opinion of this Court it logically follows that the Hoffmans, having consented to, or at least not having objected to, the erection of a causeway or road across the pond on their lands (and not on any lands of the Plaintiffs, owners of the lands south of the center-line between Plaintiffs and Hoffmans) and having agreed to abide by whatever decision the trial court rendered and specifically stipulating, on the record in open Court, that if the trial Court decided the Causeway, or 'fill’ should be removed, permission was granted either the Road Commission or Plaintiffs to go upon their (Hoffmans’) lands and remove same without any claims for damages on their part, that no condemnation proceedings should be required insofar as the Hoffmans are concerned and therefore insofar as the instant case of the Plaintiffs is concerned there is no legal requirement or necessity for condemnation proceedings, and this Court specifically so finds.”
Leave to appeal was granted by this Court. (387 Mich 759.)
The last decision of the trial judge is based upon an erroneous supposition that the Hoffmans, so long as they remained upon their portion of the pond, were free to destroy or impair the riparian rights of plaintiffs, which rights existed not only as to the portion of the pond on plaintiffs’ property but as to the entire body of water.
In Beach v Hayner, 207 Mich 93 (1919), the question of respective rights of several riparian owners was considered. This Court held (p 98):
"[B]ut we are of the opinion that the judge was right in holding that where there are several riparian owners to an inland lake, such proprietors and their lessees and licensees may use the surface of the whole lake for boating and fishing, so far as they do not interfere with the reasonable use of the waters by the other riparian owners.”
The above case was followed in Manney v Prouse, 248 Mich 655 (1929), Bauman v Barendregt, 251 Mich 67 (1930), and Swartz v Sherston, 299 Mich 423 (1941).
The question again arose in the case of Burt v Munger, 314 Mich 659 (1946). In that case plaintiffs proposed to construct a wall on the bed of a lake and to fill in between the wall and the shore. They filed a bill for a decree to determine their rights. Justice Carr, for a unanimous Court, after citing the above cited cases, wrote as follows (p 664):
"The foregoing decisions clearly indicate the general rule recognized and applied in this State with reference to riparian proprietors on inland lakes of the character here involved. See, also, Pere Marquette R. Co. v. Siegle, 260 Mich. 89 [1932]; Greisinger v. Klinhardt, 321 Mo. 186 (9 S.W. [2d] 978 [1928]); Mueller v. Klinhart (Mo. App.), 167 S.W. (2d) 670 [1943], The conclusion follows that defendant has the right to the use of the entire surface of the waters in St. Marys Lake for boating and fishing purposes. If plaintiffs are permitted to construct their proposed wall on the bed of the lake and fill in between such wall and the shore line such action will necessarily constitute an interference with defendant’s rights of boating and fishing on the entire surface of the lake in its natural condition. The size of the lake will be diminished to the extent of the lake bottom occupied by the wall and the fill. Plaintiffs’ shore property will, of course, be increased in like measure. The same situation obtains with reference to the section of the lake bottom that plaintiffs desire to raise above the water level. The result of such action would be to increase the extent of plaintiffs’ land on the shore, at the expense of the lake and defendant’s rights therein. The desire of plaintiffs to protect and improve their property is quite natural, but they are not entitled to accomplish such purpose by means constituting an invasion of the rights of the defendant.”
The trespass by defendant Road Commission, which was committed in this case, occurred in the spring of 1967. The riparian rights of plaintiffs in the pond have been impaired for the last six years. In order that those rights might be restored as quickly as possible, we entered the following order in this case on September 13,1972:
"It is ordered that defendant Board of County Road Commissioners for the County of Charlevoix shall begin forthwith (this week) removing the road fill, stumps, and other debris placed by it in the pond located on the lands of plaintiffs and of defendants, Joseph Hoffman and Ruth Hoffman, in Bay Township, Charlevoix County, Michigan, and that said Board shall immediately restore said lands and pond to the condition existing prior to the extension of Reycraft Road over said pond to the shore of Walloon Lake.
"It is further ordered that defendant Board of County Road Commissioners for the County of Charlevoix be and it hereby is permanently enjoined from interfering with plaintiffs’ quiet enjoyment of their riparian rights in the waters of said pond.
"It is further ordered that this case be remanded to the trial judge for the assessment of plaintiffs’ damages resulting from the wrongful actions of defendant in placing said fill, stumps, and other debris in and upon said pond, said damages to be assessed for the period of trespass commencing in the spring of 1967.
"Costs to plaintiffs and appellants.
"Opinion or opinions of this Court will be entered following the entry of this order.”
The case is remanded to the trial court for final adjudication of the rights of plaintiffs as determined in the above quoted order and in this opinion. Costs to plaintiffs and appellants in all courts.
T. M. Kavanagh, C. J., and Black, T. E. Brennan, T. G. Kavanagh, Swainson, and Williams, JJ., concurred with Adams, J.
Defendant’s Exhibit A
PLAINTIFFS’ EXHIBIT 5
PLAINTIFFS’ EXHIBIT 6
Defendant’s Exhibit A, p 528, depicts the situation. Walloon Lake lies to the east, Zenith Heights Road to the west, plaintiffs’ property is to the right or south of the causeway, the Hoffmans’ property is on and to the north of the causeway. The pond is approximately the area shown as water.
See Plaintiffs’ Exhibit 5, p 529.
See Plaintiffs’ Exhibit 6, p 530. | [
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Bushnell, J.
Defendant City Finance Company, a Delaware corporation, which has a “small-loan” office in the city of Detroit, brought an action in assumpsit in the municipal court for the city of Highland Park against James J. Edwards, who resides in the city of Detroit. Edwards, who was personally served with process, appeared, answered the finance company’s declaration, and demanded a jury trial. Edwards testified in his own behalf. After the trial judge directed a verdict in favor of the finance company, Edwards moved to dismiss on the ground that the court lacked jurisdiction, which motion was denied, as was another one to set aside the judgment. No appeal was taken to the circuit court.
"When the finance company obtained a writ of garnishment against Edwards’ wages to satisfy its judgment, he brought action in the circuit court to recover damages on the g*round of abuse of process. The finance company appeared specially and, upon its motion, this circuit court cause was dismissed.
Edwards relies upon a statute designated in its “catch-line” as “Venue of actions; exception as to certain cities and counties.” CL 1948, § 666.10, as amended by PA 1949, No 44 (Stat Ann 1951 Cum Supp § 27.3188), which reads in part as follows:
“Sec. 10. Every action commenced in such court shall he brought before some justice of the peace of the city or township where:
“1. The plaintiffs or any of them reside; or
“2. "Where the defendants or any of them reside; or
“3. Before some justice of another township or city, in the same county, next-adjoining the residence of the plaintiff or defendant or 1 of the plaintiffs or defendants: Provided, however, That justices of the peace in cities having a population of 10,000 or more shall have exclusive jurisdiction, concurrent jurisdiction of courts of record excepted, in causes or proceedings where all the parties to the same reside in said city at the time of the commencement of the proceedings or cause, and in case where the original cause of action existed in favor of a plaintiff and against a defendant, both residents of said city, and has been assigned to a nonresident of said city; or.”
Edwards argues that the finance company at the time it commenced its action in the Highland Park municipal court knew that that court was without jurisdiction; that they concealed .the residence of the City Finance Company from that court;' that the summons would not have been issued had they made a full disclosure. He also claims that the judgment creditor was fully aware at the time it obtained the writ of garnishment that the judgment obtained in Highland Park was wholly invalid and void.
The argument thus presented amounts to a collateral attack upon the judgment in the original suit. In re Ives, 314 Mich 690. Such attack is permissible only if the court never acquired jurisdiction over the persons or the subject matter. Adams v. Adams, 304 Mich 290, 293, and Life Insurance Company of Detroit v. Burton, 306 Mich 81.
The municipal co.urt had jurisdiction over both the parties and the subject matter, because Edwayds was personally served and entered a general appearance; and the court had jurisdiction over an action in assumpsit' on the promissory note. Edwards argues, however, that the statute hereinbefore quoted imposes another jurisdictional requirement. The parties, by a general appearance, may waive any “jurisdictional” defects arising out of a failure to observe residential requirements. Thompson v. Michigan Mutual Benefit Association, 52 Mich 522; Noble v. Grandin, 125 Mich 383, 387-389; Johnson v. Burke, 167 Mich 349, 355; Westgate v. Dunn, 291 Mich 286.
A failure to meet the requirements of a “venue” statute does not constitute a true jurisdictional defect. Venue requirements may be waived, but the parties by agreement cannot confer jurisdiction as to subject matter upon the'court. Thompson v. Michigan Mutual Benefit Association, supra; Kirkwood v. Hoxie, 95 Mich 62 (35 Am St Rep 549); and Sloss v. Young, 275 Mich 492. A defect in venue requirements, even where not waived by a general appear,anee, is not such a defect as may be attacked collaterally. Miller v. Smith, 115 Mich 427 (69 Am St Rep 583). If there is .a true jurisdictional defect, the court has acted without authority, its judgment is a nullity and is always subject to collateral attack. ■.
“There is a wide difference between a want of jurisdiction, in which cáse the court has no power to adjudicate at all, and a mistake in the exercise of undoubted jurisdiction, in which case the action of .the trial court is not void although it may be subject to direct attack on appeal.” Jackson City Bank & Trust Co. v. Fredrick, 271 Mich 538, 544.
The statute upon which plaintiff relies is not a true jurisdictional statute, but is one pertaining to venue. Its requirements may be waived by failure to seasonably raise the question in the original proceedings.
Since the Highland Park municipal court had jurisdiction to render a judgment in the assumpsit action, plaintiff may not question that judgment in this collateral suit.
The order of dismissal is affirmed, with costs to appellees.
Dethmees, Butzel, Carr, Sharpe, Boyles, and Reid, JJ., concurred.
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Adams, J.
I.
Plaintiff Valentine, on his own behalf and for his wife, filed suit in Oakland County Circuit Court. He asked that Michigan Bell be ordered to provide adequate telephone service, damages for losses incurred as a result of inadequate service, punitive and exemplary damages in the amount of $790,000, and a finding that the Public Service Commission’s regulations concerning limitations of liability be declared null and void as against public policy. The claim, as amended, charged breach of contract, gross negligence, fraud and misrepre sentation, malicious and fraudulent failure to provide reasonably adequate equipment and facilities and service, and willful and wanton negligence.
Michigan Bell moved for accelerated and summary judgment based on three grounds: .1) by the doctrine of primary jurisdiction, the Public Service Commission had to hear the case first; 2) there was a similar action by Valentine pending before the Public Service Commission; and 3) there was a failure to state a claim upon which relief could be granted.
The trial court granted summary judgment. The Court of Appeals affirmed. (31 Mich App 18.) In an opinion written by Judge Quinn, that Court found that, regardless of the variety of names Valentine gave to his claim, he was basically complaining of inadequate service and equipment over which the Public Service Commission had primary jurisdiction. Dismissal was therefore proper. Any appeal from the order of the Commission would be to the Ingham County Circuit Court in accordance with MCLA 484.114; MSA 22.1454. The Court of Appeals declined to follow Grevers v Michigan Bell Telephone Co, 18 Mich App 422 (1969), noting that the issue of lack of jurisdiction of the Wayne County Circuit Court was not raised in Grevers.
II. Jurisdiction
The first question in this case is the extent of the jurisdiction of the Oakland County Circuit Court in a suit by a customer against a utility based upon claimed inadequate or improper service or, stated the other way around, the extent of the jurisdiction of the Public Service Commission with regard to such a claim. Plaintiffs maintain that any claim for damages suffered by them is within the jurisdiction of the Oakland County Circuit Court. Defendant, on the other hand, agrees with the holding of the Court of Appeals that the Public Service Commission has primary-jurisdiction as to all matters covered by the code and tariff. If plaintiffs have suffered damages due to inadequate service, defendant maintains their remedy is through the Commission and from it to the Ingham County Circuit Court.
This Court has recognized that certain claims against a telephone company may be brought in courts of general jurisdiction of this state. In Harbaugh v Citizens Telephone Co, 190 Mich 421 (1916), a declaration in trespass on the case against a telephone company for wrongful refusal to connect plaintiff’s telephone with a city exchange, charging a loss of business, was held to state a cause of action for which damages could be recovered. While defendant would distinguish that case from this one because no tariff was involved in Harbaugh and because the declaration sounded in tort, the case does recognize that in some situations a court of general jurisdiction is the proper forum in which to sue.
A telephone customer’s right of action for damages suffered due to the negligence of a telephone company in assigning a number was analyzed by this Court in Muskegon Agency, Inc v General Telephone Co of Michigan, 340 Mich 472 (1954). This Court quoted with approval the following from the opinion of the trial court (pp 478-479):
" 'In this case, we have an agreement based upon a valid consideration of mutual promises. The plaintiff relied upon his mutual agreement, to its detriment. There was a breach of the agreement and of duty by the defendant.
" 'On the allegations of the declaration and the facts admitted by the pleadings, the plaintiff is not confined to a recovery for breach of contract: it is also entitled to sue in tort and, in case of recovery, have its damages measured as in that character of action. The defendant is a public service corporation operating under a public franchise. The law necessarily imposes an obligation of diligence upon such favored corporations. If the proofs sustain the allegation, the plaintiff should be entitled to a fair compensation for the loss it has sustained, the inconvenience and annoyance of being wrongfully deprived of the service for which it had stipulated. * * * (Emphasis added.)
In Muskegon Agency, Inc v General Telephone Co of Michigan, 350 Mich 41 (1957), the above holding was reaffirmed. Defendant would distinguish the Muskegon case because the deficiency in service was not dealt with in the telephone company’s tariff. Defendant concedes, however, that some claims against it can be adjudicated by a court of general jurisdiction and, in its brief, gives, as an example, a claim for personal injuries arising out of the negligent operation of one of defendant’s trucks. Defendant maintains: "If the activity is regulated, if it is controlled by statute and regulations of the Commission, the Commission has exclusive jurisdiction and the Oakland County Circuit Court has none.”
The Public Service Commission is primarily a regulatory and administrative body. "It is * * * vested with power and jurisdiction to regulate all rates, fares, fees, charges, services, rules, conditions of service and all other matters pertaining to the formation, operation or direction of such public utilities.” MCLA 460.6; MSA 22.13(6).
The theory behind the powers of a regulatory body, such as the Public Service Commission, to fix rates, charges and conditions of service is that, in dealing with monopolistic corporations that serve great numbers of customers, some public agency must have the power to fix the rates, charges, etc., fairly to both the utility and the customers. The validity and effect of tariffs and regulations so promulgated has been recognized and upheld. The power of the Public Service Commission over rates, etc., is not retroactive. Michigan Bell Telephone Co v Public Service Commission, 315 Mich 533 (1946); Muskegon Agency, Inc v General Telephone Co of Michigan, supra. Its tariffs and regulations become effective when adopted by it. Fletcher Paper Co v Detroit & M R Co, 198 Mich 469 (1917).
There are some situations involving rates in which a customer may sue a utility in a court of general jurisdiction. In the Fletcher case, it was held that the Circuit Court of Bay County was the proper forum for the recovery of rates wrongfully charged by a railroad company in contravention of the rates which had been set by the Michigan Railroad Commission. In that case, an action in assumpsit was based on the validity of rates set by the Commission and the invalidity of the overcharge. Plaintiff did not seek to upset the rates established by the Commission but rather to recover from the railroad for charges wrongfully imposed by it in violation of Commission-set rates.
If a plaintiff’s cause of action is based upon a claim that the utility has violated Public Service Commission promulgated tariffs or codes, or if the claim covers some action by the utility outside of the regulations of the Public Service Commission, a court of general jurisdiction is the proper forum. On the other hand, the code or tariff is part of the contract between the parties and limits of liability therein contained are presumptively valid. Any claim based upon the contractual obligation of the parties is limited to validly promulgated provisions of the tariff or code within the authority of the Public Service Commission. Ordinarily, a party aggrieved by the provisions of a tariff or code should seek relief by an attack upon those provisions before the Public Service Commission and from it to the Ingham County Circuit Court. While the contractual obligations of the parties may be determined by the rules, tariffs and regulations of the Public Service Commission, such is not the case with regard to tortious conduct. Harbaugh, supra, and Muskegon Agency cases, supra, have clearly established that the proper forum for a claim sounding in tort is a court of general jurisdiction of this state.
III. Plaintiffs’ Claims
Count I of plaintiffs’ first complaint is based on the claim that "service-has not been efficiently and consistently provided”. It further claims that because the service has been out of order, Stephen K. Valentine "has lost clients and aggravated other clients and potential clients by reason of the cli-. ents inability to communicate with the plaintiff, * * * ,” and Frances M. Valentine "has been called on numerous occasions to be given teaching assignments, but because of the malfunctioning telephone equipment * * * has lost teaching assignments * * * .”
Count II claims that the failure to provide "efficient and consistent telephone service” constituted gross negligence and that the actions of defendant have damaged the reputation of Stephen K. Valentine as an attorney and that of Frances M. Valentine as a teacher.
By a first amended complaint, a third count was added which stated "the defendant * * * has adopted an operating policy * * * which is misleading and fraudulent and constitutes fraud and misrepresentations to the subscribers and users of their services * * * ,” Some of the misrepresentations were the giving of busy signals when the telephone was actually out of order and giving incorrect measurement of time on long distance calls.
Plaintiffs’ second amended complaint contains five counts, the first three, plus two more.
Count IV alleges:
"That the defendant maliciously, fraudulently and by way of misrepresentation assured and presently assures plaintiffs and others that it uses reasonably adequate and up-to-date equipment and that it is doing all it can to supply proper service; defendant makes these representations knowing that they are false * * * .
"That the defendant, by design uses obsolete and outdated equipment, and that it materially represents this equipment to be up-to-date and adequate when in fact, defendant is fully aware that such is not the case; or that defendant made or continues to make such representations recklessly, without any knowledge of its truth and as a positive assertion.
"That plaintiffs have relied, to their detriment, on such representations and as a result they have been severely damaged and injured, * * * in their inability to rely on reasonably adequate telephone service * * * , and plaintiffs are further damaged and injured when callers attempt to reach plaintiffs and are misled into a belief by virtue of defendant’s use of busy signals, ringing tones, etc., that plaintiffs are unavailable when such is not the case.”
Count V alleges:
"That the acts of the defendant * * * are the result of defendant’s willful and wanton negligence and in certain instances the fraud and misrepresentation of defendant * * * and that the shield claimed by the defendant of limited liability by virtue of the Michigan Public Service Commission tariffs and regulations is so unconscionable as to be unenforceable.”
The provisions of 1954 AC, R 460.1960, p 6457, and Michigan Bell Telephone Company Tariff MPSC No 7, Original Sheet No 6, both in effect in 1969, in pertinent part provide:
R 460.1960:
"10.2. The liability of the telephone utility for damages arising out of mistakes, omissions, interruptions, delays, errors, or defects in transmission, occurring in the course of furnishing service or facilities and not caused by the negligence of the customer, shall in no event exceed an amount proportionate to the charge to the customer for the period of service during which such mistake, omission, interruption, delay, defect, or error in transmission occurs.
"10.5. In the adjustment of charges because of an error in billing, refunds and charges will be made in the full amount when they can be determined; when the exact amount cannot be determined from the records, the maximum refund or charge will not exceed an estimated amount equal to such charge for a 3-year period.”
Tariff MPSC No 7, Original Sheet No 6:
"GENERAL REGULATIONS GENERAL
"A. UNDERTAKING OF THE TELEPHONE COMPANY.
"1. The Telephone Company does not undertake to transmit messages but offers the use of its facilities for the transmission of communications.
"2. The calling party and the called party are required to establish their identities to each other as may be necessary in the course of' the communication and the responsibility for so doing rests with those parties.
"B. USE OF SERVICE AND FACILITIES.
"1. The service and facilities furnished are intended only for communications in which the customer or user authorized by the Telephone Company has a direct interest and shall not be used for any purpose for which a payment or other compensation shall be received by them or either of them from any other person, firm or corporation for such use, or in the collection, transmission or delivery of any communication for others — except that these provisions do not apply to the handling of messages accepted for transmission by customers who are engaged in a public telegraph business nor to such other cases as are specifically referred to in the Telephone Company’s Tariffs, nor where such use is casual.
"C. LIABILITY OF THE TELEPHONE COMPANY.
"1. In the event of an interruption to the service which is not due to the negligence or willful act of the customer, upon notice and application by the customer an allowance will be made for the time the interruption continues.
"2. The liability of the Telephone Company for damages arising out of mistakes, omissions, interruptions, delays, or errors or defects in transmission occurring in the course of furnishing service or facilities and not caused by the negligence of the customer, shall in no event exceed an amount equivalent to the proportionate charge to the customer for the period of service during which such mistake, omission, interruption, delay, or error or defect in transmission occurs.
"5. The Telephone Company is not liable for any * * * damage to the premises of a customer (or authorized user) resulting from the attachment of the Telephone Company’s instruments, apparatus and associated wiring on such premises or from the installation or removal thereof.”
The detailed quoted portions of the various counts have been set out to delineate the full extent of the pleaded facts. No count sets forth acts or conduct of defendant that would constitute negligence, gross negligence, fraud, misrepresentation, or some other tort. As for any claim in contract, no violation of the code or tariff is pleaded.
The trial court, in its judgment of dismissal, correctly held that "neither the Complaint nor any amendment thereto filed herein set forth a cause of action cognizable by this Court.” As was stated in Plassey v S. Loewenstein & Son, 330 Mich 525, 528 (1951): "But allegations of mere conclusions are not sufficient to save a pleading from dismissal on proper motion.” During the argument on the motion for summary judgment, the court stated, "I do not have the jurisdiction.” Part of the confusion in this case has arisen because of this statement of the trial judge and the statement by the Court of Appeals "that primary jurisdiction over issues of inadequate service and equipment lies with MPSC.” The jurisdiction of the Public Service Commission is primarily prospective — a matter of promulgating regulations and setting rates. Its tariffs and regulations, if applicable, control as to the rights of the parties. The courts are primarily concerned with affording remedies for actions that have taken place. A claim that sets forth facts showing a plaintiff suffered damage as a result of a violation of the tariffs and regulations can be entertained by a court of general jurisdiction, or a claim in tort that sets forth facts which would constitute tortious conduct to the injury and damage of the claimant can also be filed in a court of general jurisdiction.
The trial court and the Court of Appeals are affirmed. Plaintiffs failed to state a cause of action. Costs to defendant-appellee.
T. M. Kavanagh, C. J., and Black, T. E. Brennan, T. G. Kavanagh, Swainson, and Williams, JJ., concurred with Adams, J.
Correll v The Ohio Bell Telephone Co, 63 Ohio App 491; 27 NE2d 173 (1939); Wilkinson v New England Telephone & Telegraph Co, 327 Mass 132; 97 NE2d 413 (1951); Cole v Pacific Telephone & Telegraph Co, 112 Cal App 2d 416; 246 P2d 686 (1952); Wade v. Southwestern Bell Telephone Co, 352 SW2d 460 (Tex, 1961); Sarelas v Illinois Bell Telephone Co, 42 Ill App 2d 372; 192 NE2d 451 (1963); Indiana Bell Telephone Co, Inc v Ice Service, Inc, 142 Ind App 23; 231 NE2d 820 (1967); Warner v Southwestern Bell Telephone Co, 428 SW2d 596 (Mo, 1968); and 92 ALR2d 913, Section III, p 935. | [
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Swainson, J.
Defendant was tried before a jury in the Recorder’s Court for the City of Detroit on the charge of first-degree murder. He was found guilty and sentenced to life imprisonment. Defendant’s counsel informed the jury in his opening statement that they had the right to ask questions of witnesses if they so desired, during the course of the trial. He further stated that they should write out these questions and that the trial judge had the right to limit the scope of the questions. The prosecutor objected to this statement and, after extended discussion, the trial judge stated that the jurors had no such right to submit questions to the witnesses.
At the conclusion of the trial, the judge, without obtaining counsels’ permission, entered the jury room and delivered 21 exhibits to the jurors. Neither counsel, nor the jury, had requested that he do so. When the judge returned, defendant’s counsel objected to this procedure. The Court of Appeals affirmed defendant’s conviction. 31 Mich App 439. We granted leave to appeal. 385 Mich 787. In our grant of leave to appeal we limited the parties to two issues:
1. Whether the trial court committed reversible error by entering the jury room without the permission of counsel or request by the jury to deliver to the jury 21 exhibits?
2. Whether the trial court committed reversible error by ruling that jurors have no right to ask questions of witnesses?
In Zaitzeff v Raschke, 387 Mich 577 (decided June 20, 1972), our Court dealt with the issue of a trial judge entering the jury room. Speaking for a majority of the Court, Justice Black said (p 579):
"With what was written so plainly in 1961 for Wilson v Hartley, 365 Mich 188, concerning the indefensible practice of entering the jury room while the jurors are there, no matter by whom done, one would think that this Court had said enough to prevent what took place here. Yet the practice seems to go on, and on, and on, encouraged occasionally by 'no prejudice shown’ conclusions of a group of Justices who cannot hope to know what was said, or done, or gestured, or hinted, in the sanctity of the jury room.”
The facts in this case provide an even more compelling reason for preventing this type of action. In Zaitzeff, counsel for both parties agreed they did not need to be present when the jury returned its verdict (p 580). In a sense, they acquiesced to the action of the trial court, which we found to be reversible error. In the instant case, defense counsel strenuously objected, and neither counsel, nor the jury, had requested that the judge bring in these exhibits. On this issue the judgments of the Court of Appeals and of the trial court should be reversed.
The second issue is one of first impression in the State of Michigan. After defense counsel had stated that the jury did have a right to ask questions and the prosecutor had objected, the following discussion occurred between the court, defense counsel, and the prosecutor:
"Mr. Lacey [assistant prosecuting attorney]: I object, your Honor; this is argument. It hasn’t been a proper opening statement. Now Mr. Pillon is attempting to control the exercise of this courtroom in a manner which I have never seen.
"The Court: I was going to ask Mr. Pillon his authority on that. I’ve never heard of that before.
"Mr. Lacey: I’ve never heard of that.
"Mr. Pillon [defendant’s attorney]: There’s an English case on that.
"The Court: How old is it?
"Mr. Pillon: I don’t know.
"The Court: Give me the citation. There’s no case in the American jurisprudence to allow a juror to ask questions. I don’t want a statement like that from any attorney.
"Mr. Pillon: I will put it right now on the record. I can see you and I are having a disagreement. When you are the trier of the fact, you ask questions of the witnesses. The jury has the same—
"The Court: This is a new theory of law in America.
"Mr. Pillon: I’ve done it before in Recorder’s Court.
"The Court: Do you know any case anywhere in the United States — in the fifty states — or federal jurisdiction that permits this?
"Mr. Pillon: I will try and bring you back a citation after the lunch hour.
"The Court: I’ve never heard of it in my history of jurisprudence.
"Mr. Pillon: I will bring it back on the lunch hour. I have nothing further.
"The Court: All right. I will instruct the jury:
"As far as I know, you have no right to ask questions. I’ve never heard of it in my experience of law.
"The only thing I know of in certain types of civil cases there’s a thing about special questions; but in criminal jurisprudence there is no such thing.
"Mr. Pillon: Is the Court going to instruct the jury they can not do it?
"The Court: I know no authority of that being done. I’ve never heard of it being done. I know no Court Rule or statute that permits it.
"Mr. Pillon: So I am not trying to belabor the point; so I don’t misunderstand your ruling, you are barring the jury from doing that?
"The Court: I am saying the jury can not write out questions for the witnesses. It’s never been done in this courtroom. It’s never been done in the United States. It is not sustained by any authority that I know of in a criminal case.
"Mr. Pillon: I’ll try to find a case and bring it to you.
"The Court: There is some procedure in condemnation cases — used to be — for the jury to ask questions, and other types of cases; but in criminal law there is no such procedure that I know of.”
After the jury was dismissed and the parties had argued the defense motion to permit such questioning, the trial court denied the motion with the following statement:
"I will deny your motion as being within the discretion of the Court, and I will further say on the record there is no absolute right I can find in any case I can find in the United States that allows a juror to ask questions in a criminal case,”
While less than half the states have spoken on this question, all but one have recognized the right of jurors to ask questions. These states include Arkansas (Ratton v Busby, 230 Ark 667; 326 SW2d 889; 76 ALR2d 751 [1959]); Florida (Ferrara v State, 101 So 2d 797 [Fla, 1958]); Indiana (Carter v State, 250 Ind 13; 234 NE2d 650 [1968]); New York (Sitrin Brothers, Inc v Deluxe Lines, Inc, 35 Misc. 2d 1041; 231 NYS2d 943 [1962]); Pennsylvania (Boggs v Jewell Tea Co, 266 Pa 428; 109 A 666 [1920]); and Reese v Pittsburgh, 313 Pa 32; 169 A 366 [1933]).
The trial judge asserted that this had never been allowed in a criminal case, but he was incorrect in this statement. In Carter v State, supra, defendant had been convicted by a jury of involuntary manslaughter. The trial judge stated in his preliminary instruction that none of the jurors was permitted to ask questions of any of the witnesses for either party, or their attorneys. The Indiana Supreme Court held on appeal that this was error. See, also, cases collected in 31 ALR3d 872. The basic reason underlying the decisions of these Courts is that the jurors are the finders of fact and any questions they may ask may help them in reaching their ultimate determination. As the Oklahoma Court of Appeals stated in Krause v State, 75 Okla Crim 381, 386; 132 P2d 179 (1942):
"We think it proper that a juror may ask an occasional question where something has been said by a witness which is confusing to the juror for the purpose of clarifying the matter. The extent to which the trial court may allow such questioning by the juror is a matter in the discretion of the court.”
The prosecutor contends that although many of the states have recognized the right of jurors to ask questions, these states have also discouraged this right. See, for example, Ferrara v State, supra, and Shoultz v State, 106 So 2d 424 (Fla, 1958).
We are dealing here with a very narrow issue. The trial judge in denying the motion misstated that there was no case which permitted this type of questioning. He ruled, erroneously, that under no circumstances in criminal matters, could jurors ask questions of the witnesses. We hold this view was error. The practice of permitting questions to witnesses propounded by jurors should rest in the sound discretion of the trial court. It would appear that in certain circumstances, a juror might have a question which could help unravel otherwise confusing testimony. In such a situation, it would aid the fact-finding process if a juror were permitted to ask such a question. We hold that the questioning of witnesses by jurors, and the method of submission of such questions, rests in the sound discretion of the trial court. The trial judge may permit such questioning if he wishes, and we hold that it was error for the judge to rule that under no circumstances might a juror ask any questions.
The judgment of the Court of Appeals is reversed and the cause remanded for a new trial.
T. M. Kavanagh, C. J., and Adams, T. E. Brennan, T. G. Kavanagh, and Williams, JJ., concurred with Swainson, J.
Black, J., concurred in the result.
The Court of Appeals in its opinion relied on an earlier annotation found in 159 ALR 347. | [
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Butzel, J.
Victor Bologa, plaintiff, saw an advertisement for the sale of a restaurant in a Detroit evening paper reading as follows:
“CONEY ISLAND, next to a theater; $50 a day. $1,700. $500down. 5436 Michigan.”
Plaintiff had formerly worked for the Ford Motor Company bnt was not working at the time because of poor health. When he went to the address given, he met George Pitsillos, defendant and owner of the restaurant, who stated that the restaurant was located at 7326 Michigan avenue, Detroit. Plaintiff testified that defendant told him that the business was doing $50 a day as represented in the advertisement, that he relied upon this representation and believed it to be true. About six days after the appearance of the advertisement, plaintiff entered into a contract to purchase the restaurant, made a down payment of $700 instead of the $500 previously asked, gave'two notes for $106 and assumed and agreed to pay the balance of $675 due a fixture company holding title-retention contract on the equipment. He retained the same help that defendant had previously employed for two days but found that defendant had paid them more than he had represented to plaintiff. He also learned shortly after purchasing the place that the gross receipts of the business had not been $50 a day but between $20 and $25. Some four days later he told defend- . ant that he had misrepresented the business to him. • Defendant replied that with proper effort the business would amount to $50 a day.
Plaintiff then made further attempts to run the restaurant but in the 13 days he tried to run it, the business averaged less than $25 a day. He offered the return of the business and assets to defendant and even expressed a willingness to take a lesser sum than he had paid. Plaintiff discontinued the business. He offered to return the restaurant to defendant. The fixture company repossessed itself - of the fixtures. Plaintiff brought suit for the re turn of the money paid after the rescission of the contract. The case was tried without a jury. The judge held that the principle of caveat emptor applied and that there was not such proof of fraudulent material representations as would entitle plaintiff to rescind the sale; that the testimony was not sufficient so as to establish fraud; that there was no provision in the written contract of purchase as to the amount of business the restaurant had been doing, and that the testimony was insufficient to make the defendant a warrantor, if not an insurer, of the business purchased.
A careful reading of the record brings us to an opposite conclusion. A material representation in the advertisement that induced the sale was false. Plaintiff also testified without objection that defendant’s former night cook had told him that the business had only amounted to between $20 and $25 a day. An office supervisor of the Michigan sales tax department testified that the official record consisting of the returns signed by defendant showed that for a period of six months prior to the sale the highest gross sales for a single month were $580.48 and for one month it ran as low as $391.65. This would show an average of much less than $20 a day.
Defendant, who was somewhat evasive in his testimony, was asked whether he did not insert the $50 figure in the advertisement for the purpose of fooling the buyer, replied “not exactly.” Plaintiff made proper motion for new trial on the ground that the judgment was against the overwhelming weight of the evidence and upon its denial appealed.
We have frequently held that misrepresentation of income of a business is a material one and constitutes grounds for rescission. John Schweyer & Co. v. Mellon, 196 Mich. 590; Poloms v. Peterson, 249 Mich. 306; Dorgan v. Birney, 272 Mich. 145. We find that the testimony shows that a proper return of the restaurant was tendered defendant. Plaintiff was not guilty of laches nor too hasty in rescinding. _
_ The judgment of the lower court is reversed, with costs of both courts, and the case is remanded for entry of judgment for plaintiff for $700 and interest from the date of his first payment.
Plaintiff has asked that the notes amounting to $106 given to defendant he cancelled. While plaintiff in view of our opinion may have a good defense to- the notes if they have not been indorsed before maturity to a bona fide holder for value, we cannot order the return of the notes in a suit at law.
North, C. J., and Starr, Wiest, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Boyles, J.
This is suit for damages on account
of injuries réceived by - plaintiff in a collision between an automobile in wbicb she was a passenger and one owned by defendant John Iianafin, driven by his wife, Marie Iianafin, with his consent. At the close of plaintiff’s case and again at the close of all the proofs the defendants moved for a directed verdict, decision on which was reserved by the court, the case submitted to the jury, and plaintiff had verdict for $12,000. Defendants then moved for judgment non obstante veredicto, which was granted. From the judgment for defendants entered thereon, plaintiff appeals. Defendants cross-appeal on certain grounds which will be considered later in a separate division of this opinion.
In considering plaintiff’s appeal from the judgment entered for defendants non obstante veredicto, there are two questions before us, (1) viewing the testimony in the light most favorable to plaintiff, was there an issue to be submitted to the jury as to whether defendants were guilty of negligence, and, if so, whether it was the proximate cause of the injury; and (2) did the court err in entering judgment for defendants notwithstanding the verdict because of the jury’s answers to certain special questions.
The accident occurred on highway US-23 about a mile'and three-quarters south of Pinconning, on June 15, 1941, at about 5 p. m. It was a clear day, the pavement was dry, US-23 at this place was a straight, level, three-lane concrete highway with adjoining shoulders of gravel from 6 to 10 feet wide, all being in a good condition. It had rained on the week end prior to the accident. At the time of the accident the pavement was dry, but the shoulders were damp. Plaintiff, her husband, and son J acide had gone from Detroit on a week-end fishing trip with a friend, Herman J. LeBlanc, using his automobile for the trip. On the day of the accident the party started back south from Bast Tawas for Detroit, with Mr. LeBlanc driving the car, and had reached a place about a mile and three-quarters south of Pinconning between 4:30 and 5 o’clock in the afternoon. Southbound traffic was heavy, using both the west and center lanes of the highway. There were few automobiles going north in the east lane. Mr. LeBlanc was driving in the west lane, proceeding south in a line of traffic at approximately 40 miles an hour. A third car, being driven in the center lane in a southerly direction, ahead of LeBlanc, was observed to pass another car likewise in the center lane proceeding south, by going out into the east lane at a distance of approximately 250'to 300 feet southerly from the LeBlanc car. At about' this same time defendants’ automobile was being driven northward by the defendant Marie Hanafin in the east lane of the highway at the rate of from 60 to 70 miles per hour (plaintiff’s testimony). There was a conflict of testimony as to whether this third automobile, when it invaded the east lane (in which defendants’ automobile was traveling), sideswiped defendants’ automobile in passing, or whether this third automobile had successfully turned back into the center lane before the defendants’ automobile reached it. Plaintiff claims that defendant Marie Hanafin failed to use that degree of care and caution required of a reasonably prudent person under the circumstances, drove at an excessive rate of speed, crossed the three-lane highway 150 feet to collide with plaintiff’s car in its own lane of traffic. The defendants claim that the proximate cause of tbe accident was the third car coming into their lane- of traffic.
. When the third automobile was driven into the east lane, defendants’ automobile was approaching it in the east lane from the opposite direction at a high rate of speed. They succeeded in passing and continued on in their own general direction, the third automobile southward and defendants continued north or northwest about 150 feet before colliding with plaintiff’s car in the west lane. The passing occurred about 250 feet ahead of LeBlanc’s automobile as it was going south in the west lane. When LeBlanc first saw defendants’ automobile it was about 150 feet ahead, partly in the east lane, with two wheels off the pavement on the shoulder, approaching at a high rate of speed. It crossed the pavement from the east lane to the west lane and struck the automobile in which plaintiff was riding while it was in its own lane of traffic. Defendant Marie Hanafin testified she did not at any time apply brakes to the car, did not remember how she crossed the center lane to collide with plaintiff’s car in the west lane. There is no explanation why she could not or did not continue north in the east lane, thus avoiding the accident, except her claim that she became unconscious. There is no claim that LeBlanc could have prevented the accident. There was a conflict of testimony as to the distance traveled by defendants ’ automobile, as to how much time elapsed after LeBlanc saw the third car go . into the east lane before defendants’ car appeared partly in -the east lane and partly on the shoulder, and as to whether a cloud of dust was raised obstructing defendants’ view. Plaintiff’s testimony as to the elapsed time would tend to establish that the third car had time to get back into the center lane before the defendants’ car reached the place. Defendants’ testimony would indicate that a cloud of dust was raised in a collision between the third automobile and that of the defendants. Plaintiff’s testimony was to the effect'that the gravel shoulder was moist and that there was no dust. Defendants claim that the proximate cause of the accident was a collision with the third automobile coming into the east lane of traffic. Plaintiff claims that defendant^’ automobile was operated negligently at an excessive rate of speed, without due regard for condition of traffic, that defendants failed to use the brakes, failed to have their car under control and to use due care in its operation.
There was testimony to go to the jury as to whether defendants were guilty of negligence in the operation of their vehicle, and as to the proximate cause of the accident. Savas v. Beals, 304 Mich. 84. While the driver of the third car was probably guilty of negligence if he knowingly drove into the east lane, where he had no right to be, in front of defendants’ rapidly approaching car, his negligence was not necessarily the sole proximate cause of the accident.
There may be two contributing causes of an injury. Welch v. Jackson & Battle Creek Traction Co., 154 Mich. 399. Where injury results from concurrent negligence of two or more persons, each proximately contributing to the result, recovery may be had against one or more. Banzhof v. Roche, 228 Mich. 36. It is not essential to recovery that defendants’ negligence be the sole cause of plaintiff’s injury. Camp v. Wilson, 258 Mich. 38. There may be two proximate causes of an accident. Fitzcharles v. Mayer, 284 Mich. 122 (3 N. C. C. A. [N. S.] 565); Bordner v. McKernan, 294 Mich. 411; Wallace v. Kramer, 296 Mich. 680. In Barkman v. Montague, 297 Mich. 538, this court approved this rule of law as follows:
“In Carr v. St. Louis Auto Supply Co., 293 Mo. 562, 569 (239 S. W. 827), a suit for personal injury, occasioned by an automobile accident, the court adopted the well-established rule stated in 1 Shearman & Redfield on Negligence (6th Ed.), § 122, as follows:
“ ‘Concurrent, as distinguished from joint negligence, arises where the injury is proximately caused by the concurrent wrongful acts or omissions of two or more persons acting independently. That the negligence of another person than the defendant contributes, concurs or co-operates to produce the injury is of no consequence. Both are ordinarily liable. And unless the damage caused by each is clearly separable, permitting the distinct assignment of responsibility to each, each is liable for the entire damage. The degree of culpability is immaterial.’ ”
The court was in error in entering judgment for the defendants notwithstanding the verdict on the ground that there was no issue of fact for the jury as to defendants’ negligence or as to whether it was the proximate cause of the accident. We then reach the question whether the jury’s answers to special questions submitted to the jury were inconsistent with and contrary to the general verdict for plaintiff, requiring entry of judgment for defendants non obstante veredicto. These questions and answers were as follows:
“1. Was there a collision between the so-called ‘third car’ and the Hanafin car before the Hanafin car collided with the car in which plaintiff was a passenger?
“Answer, ‘No.’
“2. Was the collision between the Hanafin car and the car in which plaintiff was passenger caused solely by the so-called ‘third car’ suddenly driving directly in front of the Hanafin car?
“Answer, ‘No.’
“3. Did the so-called ‘third car,’ after driving into the east lane of the paved portion of the highway, then drive back into the middle or west lane and remain there until after the Hanafin car met and passed it?
“Answer, ‘Yes.’
“4. Was Marie Hanafin driving her automobile at an excessive and unreasonable rate of speed at, the time she claims to have been struck by the so-called ‘third car’?
“Answer, ‘Yes.’
“5. If your answer to question numbered four is ‘Yes,’ then answer the following question:
“Did the excessive speed of the Hanafin car directly contribute to cause the plaintiff’s injuries in any other way than merely bringing the Hanafin car up to the point on the highway where the accident happened at the time it happened?
“Answer, ‘No.’ ”
After verdict and before judgment, defendants moved for judgment non obstante veredicto on the ground that the special finding in answer to the fifth question was inconsistent with the general verdict and therefore the general verdict cannot stand. The court granted the motion and the answer to question 5 is now urged as a controlling reason why the judgment notwithstanding the verdict must be affirmed. We are not impressed with this claim. As we view question 5 and the answer, it is not inconsistent with the answers to the other questions, or with the general verdict. We conclude that the court was in error in entering judgment notwithstanding the verdict and judgment must be entered on the verdict unless a new trial should be granted because of errors complained of by defendants on their cross appeal.
Cross appeal. The 18 grounds relied upon in this court by defendants for a new trial may be grouped as follows: (1) Injecting the insurance element into the trial; (2) argument to the jury and misconduct of plaintiff’s counsel during trial; (3) exhibiting plaintiff’s injuries to the jury; (4) introduction of mortality tables; (5) great weight of the evidence.
(1) The insurance matter. The voir dire examination of the jurors was conducted by the judge. The jurors were questioned by the court as to whether they were members of a mutual insurance agency. By leave of the court, counsel further interrogated two of the jurors on the subject of insurance and counsel for defendants then remarked to the jury:
“You all realize there is no insurance company involved in this case?”
Counsel for plaintiff thereupon conceded that there was no insurance company as party defendant. We fail to see how this was objectionable— apparently it was a concession in defendants’ favor. However, counsel for defendants asked the court to instruct the jury to ‘ ‘ overlook that statement, ’ ’ and the court did so. We find no error in this incident.
(2) Misconduct of counsel and improper argument. These claims occupy the major argument in defendants’ brief and are considered together. Defendants seek a new trial on the ground of misconduct of counsel for plaintiff. We quote from defendants ’ brief:
“Not only did plaintiff’s counsel attack and cast aspersions upon defendants and their counsel during the trial of the case so as to hold them in ridicule in the eyes of the jury, but the attempt is apparently continued in this court.”
We have carefully reviewed all of the instances in the record to which defendants refer as constituting improper conduct during trial or during argu ment. In some of the instances complained of defendants’ objections were sustained, and whenever counsel asked the court during the argument to instruct the jury it was done. The record shows that counsel for defendants repeatedly interrupted the argument of counsel for plaintiff, and at times engaged in somewhat lengthy argument with plaintiff’s counsel. "Whenever requested, the court promptly and properly ruled on objections and instructed the jury when so requested. Nothing occurred during the argument which had any material bearing on the result. We find nothing to justify granting a new trial on the ground of improper argument.
During the course of the cross-examination of one of plaintiff’s witnesses by counsel for defendants, plaintiff’s counsel proposed to offer certain newspapers as evidence of weather conditions. Defendants’ counsel objected, and asked the court to instruct the jury to completely disregard it. The court said:
“Yes, inasmuch as they haven’t come into the record the jury will disregard anything that has been said about newspapers.”
We do not agree with defendants that this incident is any ground for a new trial.
(3 and 4) Exhibiting plaintiff’s injuries to the jury and introduction of mortality tables. In defendants’ brief these objections are argued together.
During plaintiff’s medical testimony as to plaintiff’s injuries, the doctor who was testifying was asked to step down and explain plaintiff’s injuries to the jury. Plaintiff was seated before the jury and caused to exhibit to the jury the result of injuries to her mouth, the loss of certain teeth, by removing some dentures. Tbe court permitted tbe examination, ruling:
“I will overrule the objection. After all, it shows tbe condition of tbe plaintiff’s mouth when tbe teeth were removed.”
Defendants argue it was reversible error to allow plaintiff, “a very pretty woman,” to thus exhibit tbe extent of her injuries. It was not error. Zelhaver v. Koepke, 260 Mich. 428; Csircsu v. Muir, 303 Mich. 323.
Tbe loss of teeth was a permanent injury. There was also evidence of a permanent injury to plaintiff’s ankle. Under such testimony it was proper to receive tbe mortality tables in evidence. Haney v. Village of Pinckney, 155 Mich. 656; Bilakos v. Kelley, 200 Mich. 125.
Defendants argue that tbe verdict was excessive. There was evidence of pain and suffering and permanent injuries. Tbe verdict was within tbe range of tbe testimony and tbe verdict was not such as to shock tbe conscience of tbe court. Under these circumstances, we do not reverse.
(5) On cross appeal tbe defendants raise tbe question that tbe verdict was contrary to tbe great weight of tbe evidence. This may be done. 3 Comp. Laws 1929, § 14532 (Stat. Ann. §27.1462); Court Rule No. 66, §8 (1933, as amended April 20, 1938). We have reviewed tbe record to determine whether a new trial should be granted defendants on this ground. There was ample testimony to support tbe verdict. We do not substitute our judgment for that of tbe jury on issues of .fact though it is possible, or even probable, that a different result would be reached if we were determining tbe facts. Wright v. Dwight, 209 Mich. 678. Tbe findings of tbe jury on tbe special questions as to tbe facts are control ling of plaintiff’s right to recover. Tanis v. Eding, 280 Mich. 440.
Reversed and remanded for entry of judgment on the verdict.
North, C. J., and Starr, Wiest, Butzel, Bushnell, Sharpe, and Reid, JJ., concurred. | [
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Bushnell, J.
The present controversy between Collateral Liquidation, Inc., assignee of Union Guardian Trust Company, and the defendant, John R. Rood, arose out of a mortgage foreclosure which has been before this court in Union Guardian Trust Co. v. Rood, 261 Mich. 188; on rehearing in 265 Mich. 354; and again on motions to vacate sale and confirmation in 267 Mich. 343.
A deficiency decree was entered against Rood on June 13, 1932. Being unable to collect the money due under this decree, a snit at law based upon it was begun against Rood in the circuit court of Lapeer county on June 10, 1942, by Collateral-Liquidation, Inc., just before the deficiency decree was about to expire by reason of the statute of limitations. 3 Comp. Laws 1929, § 13976, as amended by Act No. 72, Pnb. Acts 1941 (Comp. Laws Snpp. 1943, § 13976, Stat. Ann. 1943 Cnm. Supp. § 27.605). Rood entered a special appearance in La-peer county and moved to dismiss for want of jurisdiction, which motion was denied. He then moved to vacate the order denying the motion to dismiss and for a rehearing, which motion was noticed for hearing in the circuit court for Lapeer county on December 1, 1942.
On November 24, 1942, Rood filed a petition in the circuit court for the county of Wayne, where the deficiency decree had been entered. He sought to restrain the law action in Lapeer county. Collateral Liquidation, Inc., opposed the issuance of the injunction and asked in the alternative that it be granted leave nunc pro tunc to pursue its remedy in Lapeer county. The trial judge in the Wayne county injunction action denied this alternative request and perpetually enjoined the law action in Lapeer county. From this decree Collateral Liquidation, Inc., has appealed.
Appellant asks to have the injunction set aside on the ground that leave is not required before the institution of a suit at law upon a mortgage deficiency decree, where the suit is based solely upon the decree and not upon the original debt; and argues that, in the event prior leave is necessary, the circuit court should and could have entered an order granting such leave nunc pro tunc.
The statute in question, 3 Comp. Laws 1929, § 14367 (Stat. Ann. § 27.1135), provides in mortgage foreclosures in equity that:
“After such bill shall be filed while the same is pending, and after decree rendered thereon, no proceedings whatever shall be had at law for the recovery of the debt secured by the mortgage, or any part thereof, unless authorized by the court.”
Appellee contends that the language of this statute precludes any suit at law without leave of the court in which the foreclosure decree was entered, and he cites in support of this contention Shields v. Riopelle, 63 Mich. 458. The Riopelle Case is distinguishable on its facts and contains a statement which, although dictum in that case, is most persuasive against appellee’s contention in the instant case. The court there said:
“The decree settles the amount of debt and the report of the circuit court commissioner determines the amount of the deficiency when confirmed after the sale, and the statute provides the mode of its enforcement, by execution, and it must be resorted to before an action at law can be maintained for its recovery, and then the action will lie upon the decree, and not upon the original obligation.” (Italics ours.)
The New York civil code contains a section substantially the same as our own. It reads:
“While an action to foreclose a mortgage upon real property is pending or after final judgment for the plaintiff therein, no other action shall be commenced or maintained to recover any part of the mortgage debt, without leave of the court, in which the former action was brought. ’ ’ Cahill’s New York Civil Practice, § 1078.
This section was construed in Schultz v. Mead, 8 N. Y. Supp. 663, affirmed in 128 N. Y. 680 (29 N. E. 149), without a written opinion. The New York court said:
“This case does not fall within section 1628 of code of civil procedure (Civil Practice, §1078), as that section has reference to the original debt the mortgage was given to secure. One purpose of the section is to prevent more than one suit, and one bill of costs, upon the bond of original indebtedness. The defendant is concluded by the deficiency, and the plaintiff had the right to sue upon that judgment. The judgment became a new obligation upon its being docketed.”
When the cause of action is reduced to judgment, it is said to merge into the judgment, and it can never again form the bas[s of a suit between the same parties. “It ‘is drowned in the judgment,’ and must henceforth be regarded as fundus officio.” 2 Freeman on Judgments (5th Ed.), § 546, pp. 1166, 1167.
This is in harmony with the doctrine of merger - as given in section 47 of the Restatement of the Law of Judgments. That doctrine is:
“Where a valid and final personal judgment in an action for the recovery of money is rendered in favor of the plaintiff,
“(a) the plaintiff cannot thereafter maintain an action against the defendant on the cause of action; but
“(b) the plaintiff can maintain an action upon the judgment..”
The comment on this doctrine is:
‘ ‘ Where the plaintiff brings an action against the defendant and a valid and final judgment for the payment of money is rendered in favor of the plaintiff, the original claim of the plaintiff is extinguished and a new cause of action on the judgment is substituted for it. In such a case the plaintiff’s original claim is merged in the judgment.”
Leave of court is required by our statute (3 Comp. Laws 1929, § 14367 [Stat. Ann. § 27.1135]) before proceedings can be had for the recovery of debts secured by a mortgage or any part thereof, but an action upon a deficiency decree itself is a new and independent action and leave to begin such new and independent action is not required by statute in this State.
The circuit court of Wayne county erred in enjoining the new and independent law action in Lapeer county.
The injunction issued by the circuit court of Wayne county is dissolved, and appellee’s petition is dismissed. Costs to appellant.
.North, C. J., and Starr, Wiest, Butzel, Sharpe, Boyles, and Reid, JJ., concurred. | [
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North, C. J.
In this replevin suit, on trial by the court without a jury, plaintiff had' judgmént. Defendant has appealed. It appears that defendant Harry Talkow, doing business as Flint Cleaners & Dyers, has for some years been engaged in the dry cleaning business. Plaintiff is a manufacturer of special equipment used by cleaners and dyers. The writ of replevin specified seven pieces of equipment purchased under two separate contracts which will be discus.sed later. The usual replevin procedure' was followed; and in order that physical possession of the equipment should not be taken by the sheriff, the defendant gave a bond for'continued possession.
In 1935, defendant purchased a tumbler #93411 from the plaintiff. On December, 31, 1936, defendant purchased a pressing machine #71262 for $525 and a hat machine, #HRO10 for $325. As there was still due on tumbler #93411 $500, this amount was added to the contract, making a total of $1^350. Against this total there was given a credit for trade-in of old machinery in the amount of $1,150, leaving a final total to be paid on the contract of $200. Sometime after the contract was entered into, the pressing machine #71262 was returned to the plaintiff and a credit of $450 was given to the defendant. Even though a later contract (April 15, 1937) for purchase of other equipment was entered into be tween the parties, it is obvious that, since there was no express agreement or direction to the contrary, this credit should first apply on the original contract of which this pressing machine was a part, and any balance be applied on the later purchases. The trial judge was correct in holding that all payments on the above contract of December, 1936, had been made ■ and title to equipment named therein had passed to the defendant.
On April 15, 1937, the defendant purchased three additional tumblers, being numbers 83611, 43723 and 43724. This contract also included provisions for the return of a fan valued at $200 for credit. Although there was a difference of opinion as to the status of this fan, and its return to plaintiff or payment of the value thereof was ordered by the circuit court, the plaintiff’s brief and the defendant’s brief shows that since appeal the fan has been returned to the plaintiff. Hence any questions concerning the fan are now moot..
The cost of the three tumblers last above mem tioned was $1,200; $200 was paid by the defendant as a down payment leaving a balance due of $1,000. The record discloses that tumbler #43723 was returned to the plaintiff; that later tumbler #33715 was substituted and that all payments have been made thereon; hence title has passed to the defendant and this machine is not now involved in this replevin action. Tumbler #43724 was prematurely shipped to the defendant; was returned to plaintiff and later tumbler #4375 was shipped as a substitute therefor. Defendant accepted the substitution. It therefore appears that of the chattels purchased and not paid for in full, only the tumblers numbered 83611 and 4375 are now in the defendant’s possession. The circuit court found the value of these two tumblers and the fan to be $1,010, apparently basing the value oil the unpaid balance plus interest, after deducting the $250 credit resulting from the settle*ment of the first contract.
On appeal, defendant claims that the two- contracts above mentioned, and upon which therepleviii action was founded, were neither conditional sales contracts nor chattel mortgages, but were orders <5f purchase under an open account. The first contract is not now in issue as the circuit court held with the defendant on that instrument. The only question on this phase of the appeal is as to whether or not the second contract (April 15, 1937) is such an instrument as justified this action in replevin. We bélievé that it is. The very instrument itself is descriptive of its nature. It is called on its fa.ce — “Order-and Conditional Sales Contract.” The pertinent provision of the contract reads: - r
“1. Until the payment in cash of all the purchase price, including interest and any other sums due under this Contract, the title shall remain with the seller.”
The fact that a seller may have a series of conditional sales contracts with one purchaser, and may-in fact carry the sums due under such contracts on his books as open accounts, does not so change the contracts, each being specific as to its nature, as to give them an altered character. ; ;
Defendant claims that the replevin action is defective in that no legal demand for possession: was made prior to obtaining the writ. While it is true that apparently no written demand was made-,» yet the plaintiff’s attorney testified that he. personally made a demand. The • defendant partially, denied such a demand having been made. The- question became one of fact, determinable by the "Circuit judge hearing the case without a .jury. ' The circuit judge found demand was made, otherwise he could not have rendered judgment for plaintiff. The record supports plaintiff’s contention that demand before suit was made.
It is also the claim of the defendant that the circuit court did not distinguish between replevin and assumpsit and treated this as an assumpsit action. It was proper that the court should find the value of the replevined articles. While the record shows little evidence of the true value of the articles, yet it is very apparent that the unpaid balance due on the equipment was less than its actual value. In such case, the unpaid balance is the measure of the value. And it is to be further noted that defendant had given a bond for the continued possession of the equipment. It was proper that the judgment determine the value at the time of the conversion, so that the measure of the bondsman’s liability be fixed. See J. L. Hudson Co. v. Barnett, 255 Mich. 465. Such determination did not turn this into an assumpsit action. See 3 Comp. Laws 1929, § 14840 (Stat. Ann. § 27.1838).
Inasmuch as the plaintiff and defendant are agreed that the fan above mentioned of the value of $200 has been returned to the plaintiff and is no longer involved in this case, this item should be stricken from the replevin judgment and the money judgment of the circuit court should be reduced in the amount of $200.
The judgment entered in the circuit court was proper and is affirmed, but the case is remanded to the circuit court so that a revised judgment may be entered in accordance with this opinion. Costs to plaintiff.
Starr, Wiest, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Starr, J.
Plaintiff sues defendant J. L. Hudson Company, which conducts a department store in Detroit, and its credit manager, defendant Sales, for damages, alleging in substance that they wrongfully caused his discharge as an employee of General Motors Corporation. Upon jury trial plaintiff obtained verdict of $.2,000. The trial court granted motion for judgment non obstante veredicto and entered judgment for defendants. Plaintiff appeals, contending that the evidence presented questions of fact for jury determination and that the trial court erred in granting defendants’ motion.
Plaintiff had been employed by General Motors Corporation in Detroit for several years and in the fall of 1939 was assigned to the position of assistant production manager of its plant at Sao Paulo, Brazil, at a salary of $550 a month. There was no contract of employment between plaintiff and General Motors, but he apparently assumed that he and his family would remain in Brazil for at least three years. In preparation for the trip and prior to leaving Detroit on December 11,1939, plaintiff and his wife purchased, on credit, from defendant Hudson Company, clothing and other merchandise in the amount of about $1,700. There is no dispute as to the quality of the. goods purchased or as to the balance plaintiff owes on the account. However, the parties are in dispute as to the terms of the credit arrangement for such purchases. Plaintiff testified regarding his interview with defendant Sales, credit manager, in part as follows:
“Mrs. Yale mentioned to him at that time that she needed all of these items, and wanted to know if our credit would be good for enough money to procure those items, and * * * he said, ‘Your credit is far in excess of $2,000. * * * You just go ahead, and * * * buy anything you want and * * * let me worry about the credit.’ * * *
“We told him at that time that we would endeavor to try our best to consume or pay as much as possible by June, the major portion of it by June, if we possibly could. * * *
“Q. Did he (Sales) state specifically how long he would allow you to pay this account?
“A. We told him — he did not. We said to him at that time, so he was perfectly cognizant of it, that our period of time was three years in Brazil, and that we would have to make monthly payments. * * *
“The Coitrt: You mean that you were to have three or four years to pay for those goods, * * * without any indorsement?
“A. Yes, sir; correct.
“Q. And you were quite sure from his conversation that he was going to let you take three years in which to pay this up in any way that you could, is that it?
“A. No, I told him at that time that we would make every effort to pay that bill, as much of it as possible by June, in monthly payments. * * *
“The total amount that we paid on this indebtedness of $1,700 is somewhere in the neighborhood of $175,”
Plaintiff’s wife, who was present at his interview with defendant Sales, testified regarding the credit arrangement in part as follows:
“We went into Mr. Sales’ office, and we told him there that Mr. Tale had been made assistant production manager in Sao Paulo, and that we wanted to know about our credit, * * I explained to him, that I did not have the proper clothes, luggage, and the like to go. Mr. Sales told me it was perfectly all right. He had got my card out of the file. He looked at it, and told me that I could have the extent of credit to between $2,000 and $3,000. * * * Mr. Sales said, * * * ‘You can have two or three years to pay it.’ I explained to Mr. Sales that we would like to clean it up as soon as we could, by June or July of that year. * * * He said, ‘Don’t worry about it; take time as you need to. ’ ”
Defendant Sales gave an entirely different version of the credit arrangement with plaintiff. He testified in part:
‘ ‘ Mr. Yale came in and said that he had had a three-year assignment with the General Motors Overseas Corporation and he was going to Brazil, and he would like to buy a quantity of merchandise * * * an unusually large amount, and how much would I give him in the way of credit. * * * He told me that he was going to get $550 a month and had other income. He didn’t specify what the other income was.
“After studying the matter, I told Mr. Yale that I would let him buy up to $1,500. * * * But when 'he come in to make his purchase, he was to pay it down to $1,000, that I would give him a dating of 30, 60 and 90 days, which would be $250 a month, for four months. ■ * * * In other words, $1,500 was the amount he was to buy. He was to pay it down to $1,000 and the balance in 30, 60 and 90 days extra, which is four months.”
Plaintiff and Ms family arrived in Brazil about January 1, 1940, and he immediately began work at the General Motors plant. During the period prior to Ms discharge in June, 1940, plaintiff paid in instalments about $175 on' the Hudson Company account. There was considerable correspondence in which the company insisted upon full payment by. June 1, 1940, and in which plaintiff and his wife gave their explanations as to why they could not make full payment. In her letter of February 29, 1940, plaintiff’s wife stated: “It has been arranged through General Motors that we are to send through exchange here $50 for March which is on the way and $50 for April 1st thereafter starting on the 1st of May we will send $100 direct from here to Hudsons.” On April 1, 19J40, plaintiff wrote the Hudson Company: “I had anticipated covering the amount owing you by June of tMs year but due to conditions beyond my control I must make payments of $50 per month until a near later date when these amounts can be increased.” Hudson Company refused plaintiff’s proposition to pay the account in monthly instalments and demanded that one-half be paid in April and the balance by June 1st. It further notified plaintiff that unless such payment was made it would place the matter before the treasurer of General Motors Corporation on May 1st. On May 7th defendant Sales wrote the overseas operations division of General Motors as follows:
“Early in November of 1939, Mr. Walter S. Yale came into our office, and stated that he was given a three-year assignment by the overseas division of the General Motors Corporation to be stationed at Sao Paulo, Brazil. * * *
“We agreed to let him charge all the merchandise he needed for the trip, which we figured would be , about $1,500'. There was not mention of extended payments at that time.
“During the months of November and December, Mr. and Mrs. Tale charged $1,704.90.
“We have written Mr. Yale on several occasions and did not hear from him until April 12th, at which time he sent us $100 on account, and stated in his letter that he would send us $100 each month.
“We answered his letter on April 19th telling him that his proposition was impossible of acceptance, and that we would have to have at least one-half of the account by May 1st and the balance no later than June 1st. We also told him that unless we received a check from him by May 1st, the matter would be taken up with the home office.
“We have not heard from Mr. Yale nor have we received any other payment on his account.
“We are writing you soliciting your cooperation and advice in this matter.”
Upon receiving such letter from the Hudson Company, an official of the overseas operations division of General Motors wrote plaintiff in Brazil in part as follows:
“I have just received a letter from the J. L. Hudson Company, copy of which is attached, which is self-explanatory. * * *
“This matter was brought to my personal attention, rather than to the corporation or to the overseas operations, and I am appealing to you personally to immediately begin the fulfillment of the promise you made to the J. L. Hudson Company, namely, to make them a regular monthly payment of not less than $100, or if at all possible give them something more at this time and then complete the balance on that basis. * * *
“The J. L. Hudson Company also advise that they have had inquiries from one of the bonding companies which have received applications for a bond for you from the company. This, of course, you understand, is regular procedure of the corporation. The J. L. Hudson Company found it necessary to advise the bonding company of your indebtedness to them. I do not know whether or not this will affect the issuing of the bond. * * *•
“Rather than let matters of this kind, if there are more than one, continue to worry you, why not make a definite plan for cleaning them up. I would appreciate word from you as to just what your plans will be.”
In connection with his position at the Sao Paulo plant, plaintiff was required to furnish a faithful performance bond, and the surety company which bonded several thousand General Motors employees automatically furnished the required coverage. On February 19, 1940, plaintiff signed an application for bond in which he listed the Hudson Company as a creditor. The surety company later began the customary investigation to determine whether or not it wished to continue plaintiff’s bond. Its representative who interviewed defendant Sales testified in part:
“I called Mr. Sales in furtherance of the investigation. * * * He told me that following the extension of $1,700 worth of credit, that they had received in April, 1940, $100, and a request that Mr. Tale be allowed to pay off the balance on the basis of $100 monthly. * * *
“I see nothing here indicating directly that that information was communicated to General Motors. * * * This investigation was left hanging in midair, we never did complete it. * * * We learned first that Mr. Tale was not with General Motors any longer, and, therefore, it did not necessitate any further work on our part, or investigation.”
Defendant Sales testified regarding his interview with the representative of the surety company as follows:
“I gave Mr. Locy the details of Mr. Yale’s account. When he (plaintiff) bought, what he bought, how much he bought, and what he owed and how much he paid on the account. * * * He did not ask me in substance whether the account was in a satisfactory state. * * * What conclusions he drew, I can’t help. * * * I didn’t say anything about any overdue. . I gave him the amount that was unpaid.”
Plaintiff was discharged about June 24,1940. As above mentioned, the surety company had not completed its investigation at the time of his discharge, but it had continued his bond in full force. There is no showing that the surety company reported the results of its investigation to plaintiff’s employer or that such investigation caused his discharge. The testimony does not show that plaintiff was discharged because of any information defendants Hudson Company and Sales gave to General Motors or the surety company. However, plaintiff contends that the testimony “established by reasonable inferences” that defendants wrongfully caused his discharge. In his brief he states:
“It is the claim of plaintiff that the real business of procuring his discharge was not entirely the subject of written communication between General Motors overseas division and the Hudson Company but that it is established by- reasonable inferences.”
The conflicting testimony of plaintiff and defendant Sales clearly presented questions of fact as to the terms of the credit arrangement. However,, a finding that the terms of such arrangement were as claimed by plaintiff would not alone establish liability on the part of defendants. It was necessary for plaintiff to prove not only that defendants violated their credit arrangement, but that such violation caused his discharge.
Viewed in the light most favorable to plaintiff, the testimony does not show, nor could it be reasonably inferred, that any statements, acts or doings of defendants caused General Motors to terminate plaintiff’s employment. In fact, the testimony of Mr. Harrington, managing director of General Motors’ plant at Sao Paulo, under whom plaintiff worked, negatives any such inference. Mr. Harrington said in part:
“Q. What was the reason that the plaintiff’s contract with the General Motors Corporation was terminated as far. as your division was concerned?
“A. Mr. Yale had no contract with the General Motors Corporation. He was released because of general unsuitability and lack of interest toward his work. * * *
“Q. Did you, at any time prior to the plaintiff’s leaving Brazil, ever hear of any dealings or transactions which he had with the J. L. Hudson Company of Detroit, Michigan?
“A. No. * * *
“Q. Did the J. L. Hudson Company, in any way, shape or manner, enter into Mr. Yale’s discharge or termination of his employment with the General Motors Corporation? * * *
“A. In no way whatsoever.”
Our study of the record convinces us that the evidence presented no question of fact, for jury determination, relative to defendants ’ having wrongfully caused plaintiff’s discharge. We agree with the trial court who, in granting defendants’ motion for judgment non obstante veredicto, said’:
“There appears to be no evidence in support of the claim of the plaintiff that any act or acts on the part of the defendants in any way prevented him from procuring a bond from the Fidelity Casualty Company. The evidence establishes that the bond furnished the plaintiff was actually issued and in full force and effect and continued so until he was dismissed from Ms employment; nor is there any credible proof that any information given by the defendant I. S. Sales to the General Motors Corporation, in any 'manner motivated the employer in issuing its order of dismissal. * * *
. “Plaintiff had no contract with General Motors Corporation, other than a month-to-month employment, and was released because of general unsuitability and lack of interest towards his work; and that no dealings and business transactions that plaintiff had with the defendant company prior to his taking his position with the General Motors Corporation, overseas division, in any way caused his discharge or deprived him of his employment, or entered into the terms of his employment.”
The factual situation presented in the case of Wilkinson v. Powe, 300 Mich. 275, cited by plaintiff, distinguishes it from the case at hand.
The judgment for defendants is affirmed, with costs.
North, C. J., and Wiest, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Starr, J.
Defendant Howard appeals from a decree permanently enjoining defendants city of Highland Park and police and fire commissioners of Highland Park from reinstating him to his former position as a member of the fire department of said city. For brevity we shall herein refer to defendant city of Highland Park as the “city,” to defendant police and fire commissioners of Highland Park as the “fire commission,” and to the firemen’s civil service commission of the city as the “civil service commission.”
The charter of defendant city authorized the creation of a police and fire commission and vested it with general control and management of the fire department. Chapter 12, § 6, of the charter provided that “no member of the * * * fire force, except a probationary member, shall be dismissed except upon formal complaint and after trial and conviction by the (police and fire) commission sitting as a trial board.” Prior to the events involved in this suit, the city had adopted the provisions of Act No. 78, Pub. Acts 1935 (Comp. Laws Supp. 1940, § 2730-1 et seq., Stat. Ann. § 5.3351 et seq.) (later amended by Act No. 151, Pub. Acts 1941, and Act No. 173, Pub. Acts 1943 [Comp. Laws Supp. 1943, § 2730-6 et seq., Stat. Ann. 1943 Cum. Supp. § 5.3356 et seq.]), and in pursuance of said act had created a firemen’s civil service commission.
In July, 1936, the chief of the fire department filed complaint requesting the discharge of defendant Howard, then a captain in the department, on the ground that he was a member of and active participant in a “secret and terroristic organization” known as the Black Legion. On April 6,1937, a further complaint was filed against Howard alleging that he had been convicted of a conspiracy to murder one Arthur Kingsley. On April 12, 1937, the fire commission conducted a hearing on such charges, and defendant Howard, though not personally present, was represented by counsel. Testimony was taken, and the fire commission, finding him guilty, adopted resolution discharging him. He did not appeal to the civil service commission, and took no action questioning the legality of his discharge until 1942, when he petitioned the fire commission for reinstatement.
As above mentioned, defendant Howard had been convicted in March, 1937, of a conspiracy to murder Arthur Kingsley.- Upon appeal, his conviction was reversed and a new trial granted. People v. Hepner, 285 Mich. 631. He was not retried, and in May, 1939, the conspiracy charges against him were dismissed. Defendants Brand and Fredericks had been employed in the fire department of defendant city until August, 1936, when they were discharged for cause by the fire commission. On appeal to the civil service commission, their discharges were affirmed. Their appeal to the circuit court was dismissed, and we affirmed such dismissal. In re Fredericks, 285 Mich. 262 (125 A. L. R. 259).
In 1942 defendants Howard, Brand, and Fredericks petitioned the fire commission for reinstatement to their former positions in the fire department. Despite the opinion of the city attorney that it did not have authority to do so, the fire commission, on October 6,1942, adopted resolution reinstating them. On October 20, 1942, plaintiff as prosecuting attorney of Wayne county, upon the relation of certain residents and taxpayers of defendant city, filed bill of complaint alleging that defendant fire commission did not have authority to reinstate defendants Howard, Brand, and Fredericks, and asking -that defendants city and fire commission be permanently enjoined from reinstating them.
About November 18,1942, defendant Howard filed petition with the fire commission for a rehearing on the charges against him and asked that the resolution of the fire commission discharging him, which had been adopted Ápril 12, 1937, “be rescinded and held for nought.” The next day, November 19th, the fire commission rescinded its resolution and granted him a rehearing. At the rehearing on November 25th the fire commission determined that the charges originally brought against him “had not been substantiated,” and reinstated him in his former position.
On December 8, 1942, plaintiff filed supplemental bill of complaint, alleging that the action of defendant fire commission in connection with the reinstatement of defendant Howard was without authority, and further alleging that he could be reinstated only in accordance with the provisions of the firemen’s civil service act. Defendants city and fire commission answered, alleging the regularity of the proceedings and generally denying plaintiff’s right to the relief sought. Howard answered, claiming that he was not legally discharged in 1937 and that defendant fire commission had authority to grant him a rehearing and reinstate him.
On July 16,1943, upon plaintiff’s motion, the trial court entered a decree upon the pleadings, permanently enjoining defendants city and fire commission from reinstating defendants Howard, Brand, and Fredericks and enjoining said individuals from accepting reinstatement. Defendant Howard appeals from such decree. Defendants city, fire commission, Brand, and Fredericks have not appealed. This being a chancery case, we consider the same de novo.
On this appeal the only questions requiring consideration are, (1) Was defendant Howard legally discharged by the fire commission in April, 1937, and (2) Did the fire commission have authority to reinstate him to his former position in 1942? The title of Act No. 78, Pub. Acts 1935, provides in part:
“An act to establish and provide a board of civil service commissioners in cities, villages and municipalities having full paid members in the fire department; to provide a civil service system based upon examination and investigation as to merit, efficiency and fitness for appointment, employment and pro motion of all officers and men appointed in said fire departments; * * * to regulate the transfer, reinstatement, suspension and discharge of said officers and firemen. ’ ’
Sections 7 and 14 of said act provided in part as follows:
“Sec. 7. * * * Appointments to and promotions in all paid fire departments * * * shall be made only according to qualifications and fitness to be ascertained by examinations, which shall be competitive, and no person shall be appointed, reinstated, promoted or discharged as a paid member of said department regardless of rank or position, * * * in any manner or by any means other than - those prescribed in this act.”
" Sec. 14. The tenure of every one holding an office, place, position or employment under the provisions of this act shall be only during good behavior and efficient service; and any such person may be removed or discharged, suspended without pay, deprived of vacation privileges or other special privileges for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment to the public, neglect of duty, violation of the provisions of this act or the rules of the commission, or any other failure of good behavior, or any other acts of misfeasance, malfeasance or nonfeasance in office: provided, however, no member of any fire department * * * shall be removed, discharged or reduced in rank or pay except for cause, and in no event until he shall have been furnished with a written statement of the reasons for such actions. In every case of such removal * * * a copy of the statement of reasons therefor and answer thereto, if the person sought to be removed desires to file such written answer, shall be furnished to the civil service commission and entered upon its records. If the person sought to be removed or re duced shall demand it, the civil service commission shall grant him. a public hearing, which hearing shall be held within a period of 10 days from the filing of the charges in writing and a written answer thereto. At such hearing the burden shall be upon the removing officer to justify his action. In event that the civil service commission fails to justify the action of the .removing officer then the person sought to be removed shall be reinstated. ’ ’
Defendant Howard had notice of the charges against him, of the public hearing before defendant fire commission on April 12, 1937, at which hearing he was represented by counsel, and of the commission’s 'action in discharging him. It appears that about April 19,1937, subsequent to his discharge, the fire commission made the following report to the civil service commission:
“We hereivith furnish to the civil service commission of the city of Highland Park, to he entered upon its records, a true copy of written charges preferred by C. Floyd Baker, chief of the division of fire service of said city, against Frank Howard, a member of the fire force of said city.
“We further advise you that a hearing was held upon said charges on April 12, 1937, before the police and fire commission of said city. * * *
“Upon hearing the testimony and evidence, and after due consideration thereof, the police and fire commission unanimously found and determined that since the latter part of the year 1933 the said Frank Howard has been a member of a certain secret and terroristic organization known as the Black Legion, the Malteka Club and by various other names, and that * * * the said Frank Howard, as a member of said organization, did participate in an initiation ceremony wherein several members of said organization, including said Frank Howard and other members of the police and fire force of said city were clothed in black gowns and hoods which concealed their identity, and were armed with revolver pistols and did then and there, by a display of force and arms and by means of threats and intimidation, compel various persons against their will to become initiated into said organization; * * * that since the latter part of the year 1933 the said Prank Howard has been actively engaged in the activities of said organization and throughout such period of time he was also a member of the fire force of said city of Highland Park.
“The commission further found and determined that the additional charges made by said C. Floyd Baker against said Prank Howard are true and that said Prank" Howard was duly convicted by the recorder’s court for the city of Detroit, of conspiracy to kill and murder Arthur Kingsley. * * *
“The commission finds and determines that such conduct and activities of said Prank Howard constitute malfeasance in office, disorderly conduct detrimental to the public peace, wilful misconduct to the injury of the public service, conduct unbecoming a fireman, and general failure of good behavior, rendering the said Prank Howard unfit to continue in the public service.
“For the foregoing reasons it was unanimously resolved and determined by the police and fire commission of said city of Highland Park that said Prank Howard be forthwith removed and discharged as an employee and member of the fire force of said city.”
However, in January, 1943, the clerk of the civil service commission made affidavit that the records of said commission did not contain the charges against Howard or a “copy of the statement of reasons ’ ’ for his discharge. Although he did not appeal to the civil service commission, Howard contends that he was not legally discharged by the fire commission, because a statement of the reasons for his discharge was not ‘‘ entered upon” the records of the civil service commission. Such contention raises the question as to whether or not the entry of a statement of the reasons for his discharge upon the records of the civil service commission was a condition precedent to his being legally discharged by the fire commission. Section 14 of the act first provides in substance that no member of the fire department shall be discharged except for cause and not until he shall have been furnished with a written statement of the reasons for his discharge. The act next provides in effect that in every case a copy of the statement of reasons for discharge “shall be furnished to the civil service commission and entered upon its records.” It is clear that under the act the fire commission had authority to discharge Howard for cause, and after discharging him was required to file a statement of the reasons for his discharge with the civil service commission for entry upon its records. The furnishing of such statement to the civil service commission and the entry thereof on its records was not a condition precedent to his discharge by the fire commission.
The general purpose of the firemen’s civil service act was to benefit the public by establishing*a better-qualified personnel in the fire department and to protect its officers and employees from arbitrary and unjustifiable removal. Upon appeal by an officer or employee sought to be discharged, the civil service commission is to act as a reviewing board, and upon demand is required to grant him a public hearing. The provision of section 14 requiring a ‘ ‘ copy of the statement of reasons” for discharge to be furnished to and “entered upon” the records of the civil service commission is to provide that commission, in case of appeal, with necessary information regarding the grounds for discharge by a commission or other re moving officer. As defendant Howard did not appeal, the civil service commission was not required to take any action, either sustaining or reversing his discharge by the fire commission. He makes no claim of fraud and, had he appealed, any claimed irregularity or deficiency in the records of the civil service commission could have been corrected at that time.
The factual situation and the terms of the statute involved in the case of Sullivan v. State Board of Tax Administration, 290 Mich. 664, cited and relied upon by defendant Howard, distinguish it from the present case. In the Sullivan Case the statute involved stated in part: “In every such case of dismissal, the appointing authority shall, before the effective date thereof, give written notice of his action to the director.” "We held that under such statutory provision the appointing authority was required to give written notice of an employee’s discharge to the director of civil service “before the effective date” of the discharge. The statute involved in the present case did not require the fire commission, prior to effecting Howard’s discharge, to furnish the civil service commission with a statement of the reasons for his discharge, or that such statement be entered on the records of the civil service commission. In other words, his legal discharge by the fire commission was not conditioned upon a statement of the reasons for his discharge being entered upon the records of the civil Service commission.
The firemen’s civil service act provided the only means or method by which defendant Howard could have been reinstated., but he did not avail himself of the means for reinstatement afforded by that act. The fire commission had authority to remove him for cause, but not authority to reinstate him. The power .to reinstate was solely in the civil service commission. The fact that his conviction of a conspiracy to murder was subsequently reversed and the charge of conspiracy dismissed, did not affect the legality of his discharge in 1937, or entitle the fire commission to reinstate him. He could not, by petition to the fire commission in 1942, question the legality of his discharge by such commission in 1937 on the ground of claimed irregularity in the records of the civil service commission. We agree with the trial court who said in part:
“There is no question in my mind but what Act No. 78, Pub. Acts 1935, * * * absolutely, precludes any reinstatement by the police and fire commission. These individual defendants did not resign their offices and positions, but they were discharged by the then responsible commission because their conduct and activities were disorderly in nature and detrimental to the public peace. This conduct was found to be wilful and to the injury of the public welfare, and their conduct was also unbecoming a fireman and was of such a nature as to render them unfit for continued public service. * * * It would appear that their reinstatement, if at all permissible, could only be effectuated by the order of the civil service commission.”
We conclude that defendant Howard was legally discharged by the fire commission in April, 1937, and that such commission did not have power to reinstate him. He did not appeal from his discharge to the civil service commission, which had exclusive authority to grant reinstatement.
Furthermore, for over five years defendant Howard apparently did not question the legality of his discharge. The orderly conduct of municipal affairs requires that an officer or employee, claiming to have been discharged illegally, shall act with reasonable promptness in' asserting his right to reinstatement. Our decision in Jones v. Doonan, 265 Mich. 384, is directly applicable. In that case a policeman who was discharged for cause failed to question the legality of his discharge for nearly three years. In affirming the trial court’s judgment denying his petition for writ of mandamus to compel reinstatement, we said:
“Unreasonable delay in asserting claim to the office results in abandonment of it and waiver of the right of trial. Public business requires that the assertion of claim to office be by formal demand and appropriate legal proceedings. It is not sufficient to merely make the claim and leave it open to inaction or controversy. * * *
“Plaintiff’s declaration that he would never appear before the trial board and his subsequent failure to formally assert his right to the office or employment, within a reasonable time, was a waiver of the right of trial and an acquiescence in his dismissal. When to that is added the fact that he took no judicial proceedings for reinstatement for a period of nearly three years it must be held that he had abandoned his office and is not now entitled to reinstatement.”
Howard’s failure for a period of more than five years to question the legality of his discharge by the fire commission must be construed as an acquies^ cence in his discharge and an abandonment of his claimed right to a position in the fire department.
In view of our conclusions, other questions presented do not require consideration. The decree of the trial court entered July 16,1943, is affirmed. A public question being involved, no costs are allowed.
North, C. J., and Wiest, Butzel, Bttshnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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North, C. J.
This appeal is from denial in the circuit court of a motion by Warren township to dismiss the petition of the city of Detroit, Wayne county, for condemnation of private property for the purpose of constructing and operating an airport site in Warren township, Macomb county, Michigan. Our decision handed down herewith in Warren Township School District No. 7 v. City of Detroit and Agar v. City of Detroit, ante, 460, is related to the same subject matter. This petition recites that it is filed under the law as provided in “1 Comp. Laws 1929, §§ 3763-3783, as amended by Act No. 296, Pub. Acts 1941 (Comp. Laws Supp. 1943, §§ 3768-3770, Stat. Ann. and Stat. Ann. 1943 Cum. Supp. §§8.11-8.31),* as provided by * * * 1 Comp. Laws 1929, § 4829, as amended by Act No. 344, Pub. Acts 1939, and Act No. 333, Pub. Acts 1941 (Comp. Laws Supp. 1943, § 4829, Stat. Ann. 1943 Cum. Supp. § 10.61); and the charter of the city of Detroit; and other acts incidental thereto relative to condemnation proceedings.” The township, after being served, with an order to show cause, entered its special appearance in the condemnation proceedings for the purpose of making this motion to dismiss. The motion was heard and decided on the record consisting of the petition, the township’s motion,' and the city’s answer thereto. For reasons hereinafter noted we hold that denial of motion to dismiss must be affirmed.
The reasons first assigned by the township in support of its motion are that plaintiff’s (the city of Detroit) petition is fatally defective because “the proposed airport does not involve a matter of public health or safety,” that it “proposes to vacate or alter public roads and highways which have previously been established,” and that “it contemplates the establishment of an airport for private use and not for public use,” in violation of the Fourteenth amendment of the Federal Constitution. We know of no constitutional provision which restricts the taking of private property for public use, as proposed in the instant case, to only such purposes as have to do with public health or public safety. Instead the field is broadened to include public welfare or public necessity. The right to exercise the power of eminent domain in the instant case is not limited by the restrictive provisions in article 8, § 22, of the Constitution (1908). The power of eminent domain is inherent in State sovereignty. City of Detroit v. Oakland Circuit Judge, 237 Mich. 446; Fitzsimons & Galvin, Inc., v. Rogers, 243 Mich. 649. Subject to constitutional restrictions, it is entirely under control of the legislature. Loomis v. Hartz, 165 Mich. 662. The Michigan legislature has delegated the right to exercise that power for the purpose of establishing airports to cities, villages, townships and counties of this State. 1 Comp. Laws 1929, § 4829, as amended. The petition, under its allegations, which must be accepted as true in passing upon the township’s motion to dismiss, expressly confines the condemnation proceedings to the tailing of privately owned property. It does not seek the vacation or alteration of public roads or highways. Nor does plain tiff’s petition seek to condemn the township’s drains, sewers or water mains in the designated territory. And clearly, under the allegations of plaintiff’s petition, the contemplated airport is not one for private use, hut instead the “improvement is for the use and benefit of the public;” and.“the different pieces or parcels of real estate * * * are proposed to be taken for said public improvement, to-wit: an airport site for use and benefit of the public.”
The township also urges in support of its motion to dismiss that granting the relief sought in the condemnation proceedings would be in “direct contravention and violation” of a township ordinance under the provisions of which “the use or occupancy of any lands or premises for an airport * * * is prohibited” in that portion of Warren township where the proposed airport would be located. This contention cannot be sustained. Such-a township ordinance is unenforceable and void for the reason that it is in direct conflict with the following State statute: “The State administrative board or the legislative body of any city or village or township in this State is hereby authorized to acquire, own, control, lease, equip, improve, operate and regulate landing fields, seaplane harbors and airports for aeroplane and other aircraft either within or without the limits of said cities and villages,” 1 Comp. Laws 1929, § 4829, as amended. See, also, People v. McDaniel, 303 Mich. 90. Because a contrary contention is urged in another of the township’s reasons in support of its motion, it may be noted that the above-quoted statute does not limit the power of a city to condemn lands for the purpose specified to such lands as are within the county in which the city is located.
The township further assigns as reasons in support of its motion to dismiss that plaintiff failed to obtain the appointment of a guardian ad litem upon the filing of its petition, and also that plaintiff failed to comply with the soldiers’ and sailors’ relief act of 1940 as amended (54 Stat. at L. 1181, § 201). As to the appointment of a guardian ad litem, the circuit judge in his opinion properly stated: “It is the opinion of the court that since no minor, insane or incompetent persons were named as defendants, that appointment of a guardian ad litem as of the present time is a compliance with the act.” (1 Comp. Laws 1929, §3790 [Stat. Ann. § 8.47]). As to the other of the two'reasons just above noted, it is sufficient to observe that the Federal enactment for the protection of “a person in military service,” only provides: “In the discretion of the court in which it (any action) is pending; (the court may) on its own motion, and shall, on application to it by such person or some person in his behalf” stay the proceedings, unless in the opinion of the court the ability of the protected party to prosecute or defend the suit “is not materially affected by reason of his military service.” The statute does not require dismissal of an action, but at most only a stay under certain conditions. So far as disclosed by the record, no motion to stay has been before the trial court.
Numerous other reasons are assigned by the township in support of its motion; among them are the following: (1) that plaintiff failed to join all parties interested, including the Federal government which advanced funds for the construction of public improvements in the territory sought to be condemned, and holders of revenue bonds issued incident to the construction of drains, sewers and water mains extending into the proposed site; (2) that taking the property sought to be condemned will deprive the township and the county of Macomb of taxable property of great value; (3) that this con demnation proceeding was instituted in violation of the provisions of the Detroit city charter, which provides that condemnation proceedings to secure private property for a public improvement in the municipality shall be prosecuted in the recorder’s court of that city; and (4) that the statute under which this proceeding is brought is void because the title does not expressly authorize petitioner to condemn private property for the purpose of constructing an airport. Each of the foregoing and other reasons urged by appellant in support of its motion to dismiss have been given careful consideration, but our conclusion is that each of them is without merit.
The order of the trial court denying the township ’s motion to dismiss is affirmed and the case remanded for further proceedings. Plaintiff will have costs of this appeal against Warren township.
Starr, Wiest, Butzel, Bushnell, Sharpe, and Boyles, JJ., concurred. Reid, J., did not sit. | [
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Ryan, J.
Ongoing experience with the innovative no-fault insurance act continues to generate litigation requiring judicial discovery of the intent of the Legislature concerning various provisions of the act.
This is such a case.
We granted leave in these consolidated appeals in order to decide:
"[Whether] survivors’ benefits payable under § 3108 of the no-fault insurance act, MCL 500.3108; MSA 24.13108 [should] be computed on the basis of gross pay or take-home pay reduced by the amount of expenses avoided by reason of decedent’s death.”
And,
"[Whether] the remarriage of a widow reduce[s] the amount of survivor benefits due other dependents under § 3108 of the no-fault insurance act, MCL 500.3108; MSA 24.13108.”
We hold:
(1) The language of § 3108, read in the light of its legislative history and in the context of the no-fault act as a whole, establishes that it is the legislative intention that the calculation of "contributions of tangible things of economic value” should include consideration of all demonstrable contributions that would have been made to the dependents by the deceased but for his death, less an adjustment for income-related taxes that would have been paid by the deceased had he lived, and without consideration of any personal consumption factor relating to expenses avoided by reason of the deceased’s death; and
(2) The provisions of the no-fault act contemplate that the remarriage of a decedent’s surviving spouse is an event which requires reduction in survivors’ loss benefits due to the remaining sur viving dependents in an amount equal to the amount of contributions of tangible things of economic value which would have been provided by the deceased, at the time of death, for the sole benefit of the disqualified dependent.
(3) The decision of the Court of Appeals is reversed and the case is remanded to the circuit court for proceedings consonant herewith.
I
Plaintiffs’ decedent, Carl Saltzman, died as a result of injuries he sustained in an automobile accident which occurred on January 10, 1976. The plaintiffs are Mr. Saltzman’s widow, who is now remarried, and his children. The defendant State Farm was the decedent’s no-fault automobile insurer at the time of the fatal accident.
Prior to his death, Mr. Saltzman held one part-time and one full-time job, and his combined gross monthly wages amounted to $806.
In the spring of 1976, after Mr. Saltzman’s death, the plaintiffs met with a State Farm claims adjuster in order to calculate the plaintiffs’ survivors’ loss benefits, as provided by § 3108 of the no-fault insurance act, MCL 500.3108; MSA 24.131Ó8. Some time after this meeting, the plaintiffs were informed by State Farm that they would be paid no survivors’ loss benefits under their decedent’s no-fault policy because they were entitled to Social Security benefits which exceeded, and thereby completely offset, the amount of support that, according to State Farm’s calculations, the plaintiffs would have received from Mr. Saltzman had he lived._
In June of 1976, plaintiff Linda Miller, the decedent’s widow, remarried.
On January 28, 1977, plaintiff Miller, individually and as next friend of her two minor children by Carl Saltzman, filed suit against State Farm seeking to recover survivors’ loss benefits and other damages.
On April 22, 1977 the plaintiffs filed a motion for partial summary judgment pursuant to GCR 1963, 117.2(2), 117.2(3), claiming entitlement to survivors’ benefits. The trial judge issued a written opinion on the motion on July 14, 1977. On August 24, 1977, a judgment was entered giving effect to the July 14th decision which provided, in pertinent part:
"The court further finds that no proofs have been submitted by plaintiffs other than the decedent’s gross pay, as to the amount of contributions of tangible things of economic value that dependents of the deceased at the time of his death would have received for support during their dependency from the deceased if he had not suffered the accidental bodily injury causing death, and finds that as a matter of law defendant under the provisions of its policy and § 3108 of the no-fault act owes said dependents the sum of $806 per month, said sum being the gross pay of decedent at the time of his death, no deduction being allowable for taxes or personal consumption of the deceased.
"The court further finds as a matter of law that after the remarriage of the widow on June 25, 1976, and until January 10, 1979, said defendant shall pay to each dependent child the sum of $403 per month.”
The foregoing provisions of the August 24 judgment were subsequently incorporated into the trial court’s final judgment which was entered on January 24, 1978, after a trial on other issues.
State Farm appealed to the Court of Appeals which affirmed the trial court’s ruling that, on the record presented in this case, survivors’ loss benefits were to be calculated solely on the basis of the decedent’s gross income, there having been no evidence offered by the plaintiffs as to other sources of "contributions of tangible things of economic value” to their support by their decedent. However, the Court of Appeals disagreed with the trial court’s ruling that no "personal consumption factor” should be deducted from the decedent’s gross pay in determining the amount of survivors’ loss benefits payable under § 3108 and reversed on that point. The Court of Appeals did not discuss the trial court’s ruling concerning the effect of the decedent’s widow’s remarriage on the amount of survivors’ loss benefits which would thereafter be payable to the decedent’s remaining surviving dependents, Miller v State Farm Ins Co, 88 Mich App 175; 276 NW2d 873 (1979).
Both the plaintiffs and the defendant then filed separate applications for leave to appeal in this Court. We granted both applications and ordered their consolidation. 406 Mich 1005 (1979).
II
What is the proper method of calculation of survivors’ loss beneñts under § 3108 of the no-fault insurance act, MCL 500.3108; MSA 24.13108?
At the times relevant to this action, § 3108 of the no-fault insurance act provided:
"Personal protection insurance benefits are payable for a survivors’ loss which consists of a loss, after the date on which the deceased died, of contributions of tangible things of economic value, not including services, that dependents of the deceased at the time of his death would have received for support during their dependency from the deceased if he had not suffered the accidental bodily injury causing death and expenses, not exceeding $20.00 per day, reasonably incurred by these dependents during their dependency and after the date on which the deceased died in obtaining ordinary and necessary services in lieu of those that the deceased would have performed for their benefit if he had not suffered the injury causing death. The benefits payable for survivors’ loss in connection with the death of a person in a single 30-day period shall not exceed $1,000.00 and is [sic] not payable beyond the first 3 years after the date of the accident.”
It is clear that survivors’ loss benefits consist of two distinct elements:
(1) a loss, after the deceased’s death, of contributions of tangible things of economic value, not including services, that the deceased’s dependents would have received for support had he not died; and
(2) expenses not exceeding $20 per day, reasonably incurred by the deceased’s dependents after his death, in obtaining ordinary and necessary services in lieu of those that the deceased would have performed for his dependents’ benefit had he not died.
The issue here concerns the correct method of calculation of the first of these elements.
There is no dispute that the plaintiffs were dependents of the deceased at the time of his death, and therefore entitled to survivors’ loss benefits. It is also undisputed that Carl Saltzman’s entire contribution to his dependents’ support of "tangible things of economic value” was from his income from wages alone.
State Farm contends that, in this case, survi vors’ loss benefits should equal the deceased’s after tax "take home” (or net) pay less the amount of the deceased’s personal expenses which are avoided by reason of his death, since it is that amount which the surviving dependents actually would have received for their support from Mr. Saltzman had he lived.
The plaintiffs respond that the trial court was correct in ruling that in this case the total survivors’ loss benefits is an amount equal to the deceased’s gross pay, without any adjustment.
The Court of Appeals held that the survivors’ loss benefits in this case should be based on the decedent’s gross pay, without adjustment for taxes that would have been paid, less an amount characterized as a "consumption factor” reflecting the decedent’s personal expenses that are avoided by the surviving dependents by reason of their insured’s death. 88 Mich App 175; 276 NW2d 873 (1979).
We disagree with the lower courts’ analyses and conclusions.
In the calculation of survivors’, loss benefits under § 3108, what is to be considered in determining the amount of "contributions of tangible things of economic value” that the surviving dependents of the deceased would have received for support had the deceased lived?
In answering that question, our obligation is to discover and give effect to the Legislature’s intention in enacting § 3108 as best we can determine it from the language employed in § 3108 and the no-fault act as a whole, and in light of such legislative history as is available. See Production Credit Ass’n of Lansing v Dep’t of Treasury, 404 Mich 301, 311; 273 NW2d 10 (1978); Lansing v Lansing Twp, 356 Mich 641; 97 NW2d 804 (1959). It is therefore necessary to examine that history in order to determine how the Legislature intended no-fault “survivors’ loss” benefits to be measured. See Ballinger v Smith, 328 Mich 23, 30-31; 43 NW2d 49 (1950).
We turn first to an analysis of the language of the statute itself.
Of primary significance in the analysis is the determination of what is meant by the expression "contributions of tangible things of economic value” as it is used in § 3108.
Assigning to the words used in § 3108 their primary and generally understood meaning, it would appear uncontrovertible that the dollar amount of survivors’ loss benefits must include the amount the survivors “would have received for [their own individual] support” had Mr. Saltzman not died. That suggests that the amount to be paid them is determined merely by ascertaining first of all the total amount of “tangible things of economic value” which constituted the family’s gross "income” for a stated period and deducting therefrom such amounts as were required to be expended for all purposes other than their support and which, by reason of such requirement, would not have been available for their support. Nothing in the language of § 3108 suggests that the fund of "tangible things of economic value” is limited to wages. In today’s complex economic system, the "tangible things of economic value” which many persons contribute to the support of their dependents include hospital and medical insurance benefits, disability coverage, pensions, investment income, annuity income and other benefits. Had it been the intent of the Legislature to limit survivors’ benefits to a sum equal to what eligible dependents would have received from wages and salary alone, it could be expected to have said so. It chose instead the far broader category of "contributions of tangible things of economic value” which, on its face, suggests the inclusion of benefits derived for family support from other and different sources. Our conclusion to that effect is fortified by consideration of the history of the legislation.
Section 3108 was derived from Senate Bill No. 782 of 1971 and the corresponding House Substitute for Senate Bill No. 782. It is apparent that the relevant provisions of those bills were based, in turn, upon provisions contained in the Motor Vehicle Basic Protection Insurance Act (MVBPIA) and the Uniform Motor Vehicle Accident Reparations Act (UMVARA) respectively.
In view of the Legislaturé’s obvious reliance upon the relevant sections of the model acts, it is evident that it was cognizant of, and in agreement with, the policies which underlie the model acts’ language.
The authors’ comments on § 1.9(e) of the MVBPIA, which is in substance identical to § 9 of Senate Bill 782, are:
"In paragraph [§ 1.9](e), 'survivors’ loss’ is defined in a way somewhat similar to standards for damages under death acts, but with a more rigorous adherence to genuine economic loss than under most death acts. For example, loss of services of the deceased is not an allowable item itself; rather, the allowable item of this general nature is limited to 'expenses reasonably incurred * * * in obtaining ordinary and necessary services in lieu of those that the deceased would have performed for their [the survivors’] benefit had he not suffered the injury causing death.’ ” Keeton & O’Connell, Basic Protection for the Traffic Victim: A Blueprint for Reforming Automobile Insurance (Little, Brown & Co, 1965), p 400.
Similarly, the pertinent portion of Commissioners’ Comments to §§ l(a)(5)(iv) and l(a)(5)(v) of the UMVARA, which are in substance identical to § 3106(2) of the House Substitute, is:
" 'Survivor’s economic loss’ and 'survivor’s replacement services loss’ are defined in a way analogous to standards for damages for wrongful death except that, as is the case for 'work loss’ and 'replacement services loss,’ allowable items are more rigorously limited to genuine economic loss. As under typical wrongful death statutes, the measure of damages is loss to the survivors which results from death. Thus, in calculating benefits, the decedent’s probable life expectancy had he not been injured and the extent to which the survivors would have received contributions of things of economic value or the extent to which the decedent would have performed services for his survivors must be taken into account.” 14 ULA, Civil Procedural and Remedial Laws, Uniform Motor Vehicle Accident Reparations Act, p 55.
Thus, it appears that the Legislature’s use of the language "contributions of tangible things of economic value” in § 3108 indicates an intent that survivors’ loss benefits should at least roughly correspond to economic loss damages recoverable under our wrongful death act. MCL 600.2922; MSA 27A.2922.
Under our wrongful death act, a survivor’s recoverable economic losses include, at a minimum, the loss of financial support from the deceased and the loss of services that the survivor would have received from the deceased had he lived. See Wade, ed, The Michigan Law of Damages (Ann Arbor: ICLE, 1978), Part 2, pp 2-4 — 2-11. These elements of damages are clearly contemplated by § 3108 of the no-fault act. _
To the extent that survivors’ loss benefits are intended to be analogous to wrongful death act economic loss damages, it is important to keep in mind that wrongful death act damages focus upon the financial loss actually incurred by the survivors as a result of their decedent’s death. See 1 Speiser, Recovery for Wrongful Death (2d ed), § 3:5, pp 136-140. Certainly, the deceased’s wage or salary income is almost always a significant factor in calculating the actual financial loss incurred by the survivors. However, the amount of the loss incurred is not limited to, much less based solely upon, the deceased’s wage or salary income, but includes as well the myriad employment-related fringe benefits and other "tangible things of economic value” available for dependants’ support described hereinbefore which are not always reflected in wage or salary "take home pay”. See 1 Speiser, supra, §§ 3:8, 3:20, pp 147-150, 212-215.
Accordingly, it is our conclusion that the Legislature intended that the measurement of § 3108 survivors’ loss benefits should include the value of tangible things other than, and in addition to, wages and salary. The dollar value of such items as employer-provided health insurance coverage, pensions, disability benefits, and other tangible things of economic value that are lost to the surviving dependents by reason of the insured’s death must be taken into account. It is apparent then, that in many cases, the total amount of "contributions of tangible things of economic value” will exceed wage or salary income.
In the present case, however, the plaintiffs made no allegation and offered no evidence of any contributions to their support made by their decedent other than his income from wages. We find therefore that, on the pleadings and evidence before us, the lower court properly limited the calculation of the aggregate of the deceased’s contribution of tangible things of economic value to his gross wage income.
Ill
It is next necessary to decide whether the aggregate figure reached with respect to "contributions of tangible things of economic value” should be reduced by the amount of taxes that would have been paid by the deceased, and further reduced by an amount relating to the deceased’s "personal consumption factor”.
A
Should the calculation of survivors’ loss beneñts under § 3108 include consideration of the amount of income-related taxes that the deceased would have paid had he lived?
On this question, the Court of Appeals held:
"The defendant contends that since the above statute directs that 'a survivors’ loss * * * consists of * * * contributions * * * that dependents of the deceased * * * would have received for support’ (emphasis supplied), it is properly read to require that the plaintiffs be awarded only the amount of the decedent’s gross wage which would have been available to support the plaintiffs prior to the decedent’s death. While a literal reading of the statute provides some support for the defendant’s construction of § 3108, a brief analysis of 1972 PA 294, of which § 3108 was a part, indicates the fallacy in defendant’s argument with respect to the deduction of taxes. Section 3107(b) of the no-fault act, also a part of 1972 PA 294, explicitly provides that 15 percent may be deducted from personal protection in surance benefits in certain situations where such benefits 'are not taxable income’. Given the fact that both sections were contained in the same piece of legislation, it is reasonable to assume that had the Legislature intended, in § 3108, to limit benefits to after-tax income, it would have adopted language similar to that used in § 3107.” 88 Mich App 180-181.
We find that the Court of Appeals reliance on the language of § 3107(b) of the no-fault act was misplaced.
Section 3107(b) provides for the payment of "work loss” benefits to an insured who suffers nonfatal injury. The section defines "work loss” as "consisting of loss of income from work an injured person would have performed * *
Thus, work loss benefits are limited, by definition, to the loss of wage or salary income. Work loss benefits are not taxable, while the lost income they replace would be. The tax adjustment language in § 3107(b) therefore presumably operates equitably in all cases where taxable wage or salary income is replaced by § 3107(b) benefits. As has been discussed in Part II, survivors’ loss benefits encompass the value of items apart from, and in addition to, wage and salary income. In many instances, items that will be included in survivors’ loss benefits will have non-taxable origins. In some cases, the survivors’ loss may involve only nontaxable items. Since survivors’ loss benefits will, in many cases, include the value of items other than taxable wage or salary income, while work loss benefits are limited to wage or salary income, reliance on the language of § 3107(b) in the construction of § 3108 is inappropriate.
Of greater significance to the present issue is the language of §3108 that "a survivors’ loss * * * consists of a loss * * * of contributions of tangible things of economic value * * * that dependents of the deceased * * * would have received for support * * (Emphasis added.)
Tax liability associated with income is an inescapable fact of our modern economic life. In measuring the financial loss actually incurred by surviving dependents, it would be unrealistic to fail to acknowledge that surviving dependents would not have received for their support that portion of the deceased’s income that he would have been required to pay in taxes. Moreover, the adjustment for such taxes can be accurately based on readily ascertainable information, without unnecessary administrative delays or time-consuming factual disputes.
We find that the language of § 3108 establishes that the Legislature intended that the amount of survivors’ loss benefits should reflect an adjustment made for taxes that the deceased would have paid on taxable items included in the § 3108 benefit calculation.
We therefore hold that the lower courts erred in ruling that the calculation of survivors’ loss benefits pursuant to § 3108 should not include consideration of taxes that the deceased would have paid had he lived.
B
Should the calculation of survivors’ loss beneñts under § 3108 include consideration of a "personal consumption factor” relating to purely personal expenses of the deceased that are avoided by reason of his death?
Relying upon the provision of § 3l08 that survivors’ loss benefits are payable to a dependent for the loss of such "tangible things” as the dependent "would have received for support” but for the decedent’s death, the defendant makes a forceful argument that such fund does not include either the taxes discussed in the previous section or such sums as would have been consumed by the decedent himself for food, recreation, clothing and personal expenses. The bare language of the statute does indeed suggest that meaning. Certainly, if it was the intent of the Legislature, in employing the language chosen, to require that the dollar amount of survivors’ loss benefits be computed by deducting from the "tangible things of economic value” a "consumption factor” attributable to the deceased’s personal expenses, we must require application of such a formula. However, there are at least two persuasive indications that despite the apparently plain and simple language of the statute to the effect suggested by defendant, the Legislature did not intend such a "consumption factor” to be deducted in calculating survivors’ loss benefits.
The first is the legislative history of the adoption of § 3108, and the second is the declared purpose of the no-fault act as a whole.
We are aided in discovering legislative intent in enacting any statute by examining the proposed legislation it considered and rejected, contrasted with the provisions as finally adopted. That approach is particularly useful in this instance since there is no record of committee hearings or floor debate available to us.
As has been indicated, § 3108 was enacted after consideration of at least two alternatives.
One alternative was Senate Bill No. 782, which provided in pertinent part:
"Sec. 8. Personal protection insurance benefits are payable for a survivors’ loss which consists of a loss, after the date on which the deceased died, of contributions of tangible things of economic value, not including services, that persons who are dependents of the deceased at the time of his death would have received for support during their dependency from the deceased if he had not suffered the accidental bodily injury causing death and expenses reasonably incurred by these dependents during their dependency and after the date on which the deceased died in obtaining ordinary and necessary services in lieu of those that the deceased would have performed for their benefit if he had not suffered the injury causing death.”
The other alternative, contained in the House Substitute for Senate Bill No. 782, provided in pertinent part (§§ 3106[2] and 3106[3]):
" 'Survivor’s economic loss’ means after decedent’s death loss of contributions of things of economic value, not including services to his survivors, that his survivors would have received from the decedent had he not suffered the injury causing death, less expenses of the survivors avoided by reason of decedent’s death.”
" 'Survivor’s replacement services loss’ means expenses reasonably incurred by survivors after decedent’s death in obtaining ordinary and necessary services in lieu of those that decedent would have performed for their benefit had he not suffered the injury causing death, less expenses of the survivors avoided by reason of the decedent’s death and which were not subtracted in calculating survivor’s economic loss.” (Emphasis added.) 5 Mich House J (1972) 1418-1419.
The myriad activities that attend the legislative process having run their course, 1972 PA 294 was enacted containing language consistent with that of Senate Bill No. 782 and without the clause "less expenses of the survivors avoided by reason of the decedent’s death” which appeared in the House substitute bill.
It is logical to conclude that the Legislature eliminated the italicized clause for a reason, and most likely the reason was that it wished to preclude reduction of the amount of' survivors’ loss benefits by the decedent’s "consumption factor”. We are asked, however, to hold, as did the Court of Appeals, that the Legislature meant in § 3108 not only what it did not say explicitly, but what it explicitly rejected. We are not inclined to do so. See Wayne County v Auditor General, 250 Mich 227, 235-236; 229 NW 911 (1930); People v Adamowski, 340 Mich 422, 429; 65 NW2d 753 (1954). See also 2A Sutherland’s Statutory Construction (4th ed), § 48.18, pp 224-225.
The second reason we think the Legislature did not intend that a "consumption factor” for the decedent’s personal expenses be calculated and deducted from the fund of "things of tangible value” that the decedent’s dependents would otherwise have received is found in our understand ing of the purpose of the no-fault act itself and the manner in which it is intended to be applied.
In Shavers v Attorney General, 402 Mich 554, 578-579; 267 NW2d 72 (1978), we said:
"The goal of the no-fault insurance system was to provide victims of motor vehicle accidents assured, adequate, and prompt reparation for certain economic losses”.
The act is designed to minimize administrative delays and factual disputes that would interfere with achievement of the goal of expeditious compensation of damages suffered in motor vehicle accidents. These ends are served, for example, by the act’s provisions for conclusive presumptions of dependency status, MCL 500.3110; MSA 24.13110; for a "safe” method of payment of benefits by insurers, MCL 500.3112; MSA 24.13112; and for prompt access to earnings records of an injured person in order to facilitate determination of the amount of benefits due, MCL 500.3158; MSA 24.13158. Additionally, while §3108 does not provide for. a deduction for personal expenses of the decedent avoided by reason of his death, it does contain an absolute ceiling on the amount of survivors’ loss benefits for any 30-day period. Thus, § 3108 itself, and the act as a whole, presumably reflect a balance struck by the Legislature between absolute factual precision in the calculation of benefits and the goal of "assured, adequate, and prompt reparation for certain economic losses”.
Calculation, in every case, of a "consumption factor” attributable to the decedent’s personal expenses would be inconsistent with the declared legislative purposes of expeditious settlement of survivors’ claims without complex factual controversy;
A family is not run like a commercial enterprise. Family finances are not allocated or their expenditure accounted for as in a business. Accounting procedures are rarely, if ever, followed to account for the precise dollars-and-cents expenses in cash and in kind attributable to each member of the family. How, for example, would the deceased breadwinner’s "consumption factor” for family meals, use of the family automobile, household maintenance, and hundreds of personal expenses be calculated? And if calculable at all, one can envision the interminable controversy and disproportionate expense such a factual determination would involve. As the plaintiff so aptly put it:
"A legislative purpose of rapid, efficient and uniform claims adjustment is not advanced by a ponderous examination of every family expenditure.” Plaintiff’s Brief, p 18.
In view of the no-fault act’s goal of expeditious reparation of motor vehicle accident injuries, and minimization of potential factual disputes, we conclude that the Legislature’s explicit rejection of the language in the House substitute bill concerning the reduction of survivors’ loss benefits by the decedent’s "personal consumption factor” evidences an intent that survivors’ loss benefits not be so adjusted. The amount of such a personal consumption factor is likely to be small in most cases, and the administrative delays and factual controversies that might be engendered by such a calculation would unjustifiably interfere with the above-discussed goals of the act.
We hold that the legislative history of § 3108, and consideration of the goals of the no-fault act as a whole, lead to the conclusion that the Legislature did not intend that the calculation of § 3108 benefits should include adjustment for the deceased’s "personal consumption factor”.
We reverse the Court of Appeals ruling and reinstate the judgment of the trial court on this point.
C
In summary, we conclude that the Legislature intended that § 3108 survivors’ loss benefits should be calculated:
(1) to include all demonstrable "contributions of tangible things of economic value” including, but not limited to, wages that would have been received as support by the surviving dependents from the deceased but for his death;
(2) reduced by an adjustment for the income-related taxes that would have been paid by the decedent on items contributed by him to his dependents’ support;
(3) without adjustment for the decedent’s "personal consumption factor”.
IV
Does the remarriage of an insured decedent’s spouse reduce the amount of survivors’ beneñts due other dependents under § 3108?
As has been indicated previously, survivors’ loss benefits are payable "for a survivors’ loss * * * of contributions of tangible things of economic value * * * that dependents of the deceased at the time of his death would have received for support during their dependency * * (Emphasis added.) Such benefits are payable for three years after the date of the accident. MCL 500.3108; MSA 24.13108.
The emphasized language in § 3108 and that of § 3110(l)(a), which is set forth in the margin, establishes that dependency status for purposes of survivors’ loss benefits is to be determined by reference to the survivors’ dependency relationship to the deceased at the time of the deceased’s death.
Section 3110(3) establishes that the act contemplates the termination of dependency status upon the occurrence of specified events.
Section 3110(4) declares that survivors’ loss benefits accrue not when the injury occurs, but as the survivors’ loss is incurred.
When a survivor’s status as a dependent terminates pursuant to § 3110(3), that survivor’s individual loss is no longer incurred. Accordingly, upon the occurrence of an event specified in § 3110(3) terminating a survivor’s dependency status, it is necessary to consider an adjustment to the amount of survivors’ loss benefits payable thereafter to the remaining surviving dependents. This conclusion is buttressed by reference to § 3112 which expressly considers individual apportionment of, and entitlement to, survivors’ loss benefits, and which provides a mechanism for the resolution of disputes concerning the amount of survivors’ loss benefits due to individual surviving dependents.
We find that the above-discussed provisions of the no-fault act manifest a legislative intent that survivors’ loss benefits should be appropriately adjusted in the event of the disqualification of a survivor from dependency status. The relevant provisions indicate that the proper method of adjusting survivors’ loss benefits to reflect the termination of a survivor’s dependency status is to recalculate the amount of contributions of tangible things of economic value that the remaining dependents would have received for support from the deceased at the time of his death. That is, the aggregate of survivors’ loss benefits being paid for the benefit of all of the decedent’s survivors prior to the disqualification of one of them should be reduced only by the amount equal to the contributions of tangible things of economic value that the deceased would have made solely for the benefit of the disqualified dependent. Contributions which benefit the family unit as a whole, as opposed to the disqualified dependent only, would not be affected. For example, the contributions that the deceased would have made toward the family’s shelter in the way of house payments or rent, property taxes, household utility costs, the family car and similar expenses which do not inure to the sole benefit of the disqualified dependent should not be adjusted. Further, the adjustment should be made with reference to the aggregate of contributions of tangible things of economic value at the time of the deceased’s death — before application of the § 3108 ceilings. Thus, in a case where the initial determination of survivors’ loss was an amount in excess of the § 3108 ceilings, and the amount of benefits payable was therefore reduced to the statutory maximum, it will be necessary to determine whether the later disqualification of one of the dependents would result in a reduction of total original survivors’ loss to an amount below the applicable statutory maximum. If not, the insurer would continue to be liable for the statutory maximum after the termination of a survivor’s dependency status.
For the foregoing reasons, we reverse the trial court’s ruling concerning the effect of Linda Miller’s remarriage on the amount of survivors’ loss benefits due to the remaining dependent survivors.
V
In conclusion, to the extent that the lower courts’ decisions are contrary to the foregoing analysis, they are reversed. This case is remanded to the circuit court for further proceedings consistent with this opinion.
Fitzgerald and Blair Moody, Jr., JJ., concurred with Ryan, J.
Williams, J. I concur except as to IV.
1972 PA 294, as amended; MCL 500.3101 et seq.; MSA 24.13101 et seq.
See MCL 500.3109(1); MSA 24.13109(1). See also O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524; 273 NW2d 829 (1979).
See 1972 PA 294, §§ 3110(1)(a), 3110(1)(c); MCL 500.3110(1)(a), 500.3110(1)(c); MSA 24.13110(1)(a), 24.13110(1)(c).
The trial court refused to allow a setoff of the Social Security survivors’ benefits received by the plaintiffs, relying on O’Donnell v State Farm Ins Co, 70 Mich App 487; 245 NW2d 801 (1976).
After the trial court’s decision, and before publication of the Court of Appeals decision in this case, we decided O’Donnell v State Farm Ins Co, 404 Mich 524; 273 NW2d 829 (1979), in which we held that the set-off provision of the no-fault act, MCL 500.3109(1); MSA 24.13109(1), was constitutional, thereby reversing the Court of Appeals O’Donnell decision which had been relied upon by the trial court in this case. The Court of Appeals applied our decision in O’Donnell to this case and the issue is no longer contested by the parties.
Section 8 of Senate Bill 782 of 1971 provided, in pertinent part:
“Personal protection insurance benefits are payable for a survivors’
loss which consists of a loss, after the date on which the deceased died, of contributions of tangible things of economic value, not including services, that persons who are dependents of the deceased at the time of his death would have received for support during their dependency from the deceased if he had not suffered the accidental bodily injury causing death and expenses reasonably incurred by these dependents during their dependency and after the date on which the deceased died in obtaining ordinary and necessary services in lieu of those that the deceased would have performed for their benefit if he had not suffered the injury causing death.”
Sections 3101 and 3106 of the House Substitute for Senate Bill No. 782 provided, in pertinent part:
"Sec. 3101. This chapter shall be known and may be cited as the 'Lodge, McNeely, Heinze uniform motor vehicle accident reparations act’.
"Sec. 3106. (1) 'Survivor’ means a person who is entitled to receive benefits pursuant to Section 2922 of Act No. 236 of the Public Acts of 1961, as amended, being section 600.2922 of the Compiled Laws of 1948, by reason of the death of another person.
"(2) 'Survivor’s economic loss’ means after decedent’s death loss of contributions of things of economic value, not including services to his survivors, that his survivors would have received from the decedent had he not suffered the injury causing death, less expenses of the survivors avoided by reason of decedent’s death.
"(3) ’Survivor’s replacement services loss’ means expenses reasonably incurred by survivors after decedent’s death in obtaining ordinary and necessary services in lieu of those that decedent would have performed for their benefit had he not suffered the injury causing death, less expenses of the survivors avoided by reason of the decedent’s death and which were not subtracted in calculating survivor’s economic loss.” 5 Mich House J (1972) 4113, 4115, 4118-4119.
See Keeton & O’Connell, Basic Protection for the Traffic Victim: A Blueprint for Reforming Automobile Insurance (Little, Brown & Co, 1965), ch 7, pp 299 et seq.
Section 1.9(e) of the MVBPIA provides:
"Survivors’ loss. Survivors’ loss consists of (i) loss, after the date on which the deceased died, of contributions of tangible things of economic value (not including services) that survivors qualifying as persons suffering loss under the terms of section 1.11 of this Act would have received from the deceased had he not suffered the injury causing death and (ii) expenses reasonably incurred by such survivors after the date on which the deceased died in obtaining ordinary and necessary services in lieu of those that the deceased would have performed for their benefit had he not suffered the injury causing death.”
Compare to § 8 of Senate Bill No. 782, fn 5, supra.
See 14 ULA, Civil Procedural and Remedial Laws, Uniform Motor Vehicle Accident Reparations Act, pp 50 et seq.
Section 1(a)(5)(iv) of the UMVARA provides:
" 'Survivor’s economic loss’ means loss after decedent’s death of contributions of things of economic value to his survivors, not including services they would have received from the decedent if he had not suffered the fatal injury, less expenses of the survivors avoided by reason of decedent’s death.”
Section 1(a)(5)(v) of the UMVARA provides:
" 'Survivor’s replacement services loss’ means expenses reasonably incurred by survivors after decedent’s death in obtaining ordinary and necessary services in lieu of those the decedent would have performed for their benefit if he had not suffered the fatal injury, less expenses of the survivors avoided by reason of the decedent’s death and not subtracted in calculating survivor’s economic loss.”
Compare to §§ 3106(2) and 3106(3) of the House Substitute Bill, fn 6, supra.
The UMVARA was drafted by the National Conference of Commis sioners on Uniform State Laws under a contract with the United States Department of Transportation. Work was commenced on the uniform act in May of 1971. Hill, The Uniform Motor Vehicle Accident Reparations Act, 8 The Forum 1 (1972).
The UMVARA was ultimately adopted by the National Conference of Commissioners in August of 1972. Ghiardi & Kircher, The Uniform Motor Vehicle Accident Reparations Act: An Analysis and Critique, 23 Federation of Insurance Counsel Quarterly 47 (1972); Ghiardi & Kircher, The Uniform Motor Vehicle Accident Reparations Act, 40 Insurance Counsel J 87 (1973).
We said in Shavers v Attorney General, 402 Mich 554, 578-579; 267 NW2d 72 (1978):
"The goal of the no-fault insurance system was to provide victims of motor vehicle accidents assured, adequate, and prompt reparation for certain economic losses. The Legislature believed this goal could be most effectively achieved through a system of compulsory insurance, whereby every Michigan motorist would be required to purchase no-fault insurance or be unable to operate a motor vehicle legally in this state. Under this system, victims of motor vehicle accidents would receive insurance benefits for their injuries as a substitute for their common-law remedy in tort.”
The relationship of § 3108 survivors’ loss benefits to economic loss elements of damage under the wrongful death act is consistent with the above described goal of the no-fault act.
MCL 500.3107(b); MSA 24.13107(b) provides:
"Work loss consisting of loss of income from work an injured person would have performed during the first 3 years after the date of the accident if he had not been injured and expenses not exceeding $20.00 per day, reasonably incurred in obtaining ordinary and necessary services in lieu of those that, if he had not been injured, an injured person would have performed during the first 3 years after the date of the accident, not for income but for the benefit of himself or of his dependent. Work loss does not include any loss after the date on which the injured person dies. Because the beneñts received from personal protection insurance for loss of income are not taxable income, the beneñts payable for such loss of income shall be reduced 15% unless the claimant presents to the insurer in support of his claim reasonable proof of a lower value of the income tax advantage in his case, in which case the lower value shall apply. The benefits payable for work loss sustained in a single 30-day period and the income earned by an injured person for work during the same period together shall not exceed $1,000.00, which maximum shall apply pro rata to any lesser period of work loss. The maximum shall be adjusted annually to reflect changes in the cost of living under rules prescribed by the commissioner but any change in the maximum shall apply only to benefits arising out of accidents occurring subsequent to the date of change in the maximum.” (Emphasis added.)
MCL 500.3110; MSA 24.13110 provides:
"(1) The following persons are conclusively presumed to be dependents of a deceased person:
"(a) A wife is dependent on a husband with whom she lives at the time of his death.
“(b) A husband is dependent on a wife with whom he lives at the time of her death.
"(c) A child while under the age of 18 years, or over that age but physically or mentally incapacitated from earning, is dependent .on the parent with whom he lives or from whom he receives support regularly at the time of the death of the parent.
“(2) In all other cases, questions of dependency and the extent of dependency shall be determined in accordance with the facts as they exist at the time of death.
"(3) The dependency of a surviving spouse terminates upon death or remarriage. The dependency of any other person terminates upon the death of the person and continues only so long as the person is under the age of 18 years, physically or mentally incapacitated from earning, or engaged full time in a formal program of academic or vocational education or training.
"(4) Personal protection insurance benefits payable for accidental bodily injury accrue not when the injury occurs but as the allowable expense, work loss or survivors’ loss is incurred.” (Emphasis added.)
See fn 11.
See fn 11.
MCL 500.3112; MSA 24.13112 provides:
"Personal protection insurance benefits are payable to or for the benefit of an injured person or, in case of his death, to or for the benefit of his dependents. Payment by an insurer in good faith of personal protection insurance benefits, to or for the benefit of a person who it believes is entitled to the benefits, discharges the insurer’s liability to the extent of the payments unless the insurer has been notified in writing of the claim of some other person. If there is doubt about the proper person to receive the benefits or the proper apportionment among the persons entitled thereto, the insurer, the claimant or any other interested person may apply to the circuit court for an appropriate order. The court may designate the payees and make an equitable apportionment, taking into account the relationship of the payees to the injured person and other factors as the court considers appropriate. In the absence of a court order directing otherwise the insurer may pay:
"(a) To the dependents of the injured person, the personal protection insurance benefits accrued before his death without appointment of an administrator or executor.
"(b) To the surviving spouse, the personal protection insurance beneñts due any dependent children living with the spouse.” (Emphasis added.) | [
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Per Curiam.
We are asked to decide how the lapse of time, after the exercise of an option to purchase, affects the right to complete that purchase when the instrument creating the option is silent on the point. On this record, we believe the probate judge was correct in requiring a "reasonable” amount of time and in concluding that the 40 days extended to the plaintiff was not a reasonable amount of time to allow him to complete this purchase.
I
On May 6, 1976, C. Carlton Prichard, the owner and sole shareholder of Earl C. Smith, Inc. ("Smith”), died testate. Among the provisions of his will was a paragraph on disposition of his stock in Smith:
"In the event that Ronald C. Murrell who is now in my employ as manager of Earl C. Smith, Inc., a Michigan corporation, all of the capital stock of which is owned by me, continues in my employ until the time of my death and should he desire to purchase all of the capital stock of the said Earl C. Smith, Inc., it is my will and I direct and empower my executor to grant him, the said Ronald C. Murrell, the right of first refusal to purchase all, but not less than all, of said capital stock at its fair market value. Payment shall be made by the said Ronald C. Murrell upon such terms and conditions as my executor and the said Ronald C. Murrell shall mutually agree. Said right shall be personal to the said Ronald C. Murrell and shall not be subject to assignment in any manner whatsoever.”
On April 30, 1976, Mr. Prichard had returned from Mayo Clinic in Minnesota and, for an unexplained reason, told Mr. Murrell to "Get the hell out of my house and never cross my path again”. Mr. Murrell responded that Mr. Prichard would have his resignation in the morning. The next day, Mr. Murrell typed and apparently mailed his resignation and cleaned out his office. Mr. Prichard entered the hospital on that day.
On May 4, 1976, a notice was sent to the members of the Smith Board of Directors notifying them of a special meeting to be held May 6, 1976. The subject of the meeting was stated to be Mr. Murrell’s resignation. Mr. Murrell attended the meeting at the request of the directors. At the meeting, the directors persuaded Mr. Murrell to withdraw his resignation.
After Mr. Prichard’s death, the executor of Prichard’s estate recognized a right of first refusal in Mr. Murrell and solicited bids to establish the fair market value of the Smith stock. The highest bid ($2,850,000) was received from Paragon Transport. The bid was accepted on November 15, 1976, subject to Mr. Murrell’s right of first refusal. By letter of November 17, 1976, the executor advised Mr. Murrell that he had until December 15, 1976 to purchase the stock for $2,850,000.
On December 9, 1976, Mr. Murrell wrote to the executor requesting a 30-day extension of time in which to exercise the testamentary option. The executor denied the request. On December 15, 1976, Mr. Murrell then exercised his right of first refusal and tendered a $50,000 deposit.
On January 21, 1977, Mr. Murrell notified the executor that Manufacturers National Bank, one of the sources from which he had been seeking financing, had rejected his loan application. That same day, Paragon increased its offer to $2,950,-000. On January 24, 1977, the executor told Mr. Murrell that his right to consummate the purchase had ended. Mr. Murrell did not then object. The executor then accepted Paragon’s latest offer.
On January 26, 1977, Mr. Murrell wrote to the executor asserting the continued existence of a right to purchase the stock and objecting to the acceptance of Paragon’s offer. On January 28, 1977, Mr. Murrell initiated this action in probate court to prevent the sale of stock to Paragon and to require sale to him.
On February 2, 1977, Mr. Murrell obtained from Michigan National Bank of Port Huron a loan commitment sufficient to complete the transaction. That same day he notified the executor of the Michigan National Bank action and offered to complete the purchase within two weeks.
On February 28, 1977, after hearing the testimony of Mr. Murrell and other witnesses, the probate court entered orders holding that Mr. Prichard’s will granted Mr. Murrell a right of first refusal to purchase the Smith stock, and forbidding the sale of the stock to anyone other than Mr. Murrell. The circuit court affirmed. The Court of Appeals reversed in three separate opinions. 94 Mich App 116; 288 NW2d 598 (1979).
II
Judge Robeet Buens "focus[ed] on the reasonableness of the actions taken by the executor in terminating plaintiff’s right and entering the January 24, 1977, contract with defendant”. 94 Mich App 124. He recognized that both Mr. Murrell and the executor could expect that the sale would be consummated within "a reasonable time” after December 15, 1976. The passage of 40 days did not indicate to Judge Buens "undue haste in terminating plaintiff’s right of first refusal”. 94 Mich App 125. Judge Kaufman agreed that Mr. Murrell’s acts were not "sufficient to preserve his preemptive position”. 94 Mich App 126. Judge Gillis, in dissent, noted that this will provided for Mr. Murrell and the executor to mutually agree on the terms of the sale:
"I further note that a mutually established closing date was never set. December 31, 1976, was the date as of which the executor intended to consummate the sale. January 15, 1977, was the executor’s target date for closing the transaction. There is no claim that petitioner agreed to either of these dates. A finding that petitioner failed to consummate the transaction within a reasonable time cannot be predicated upon his failure to comply with these unilaterally set tentative closing dates.
"An examination of the following facts necessitates the conclusion that the lower courts did not clearly err in finding that the executor had not extended petitioner a reasonable time. The amount of financing which petitioner had to secure in order to effect the purchase was $2,850,000. Petitioner was given 40 days within which to arrange such financing. I would hold that 40 days is not a reasonable time within which to require one to secure financing in that large sum. The amount of money involved, alone, supports the lower courts’ determination that petitioner was not extended a reasonable time.” 94 Mich App 127-128.
The option ripened, on December 15, 1976, into a bilateral contract of purchase. LeBaron Homes, Inc v Pontiac Housing Fund, Inc, 319 Mich 310, 315; 29 NW2d 704 (1947). When a contract does not identify a time for performance, as this one did not, "the law will presume a reasonable time”. Duke v Miller, 355 Mich 540, 543; 94 NW2d 819 (1959). We agree with Judge Gillis and the courts below that 40 days was not a reasonable time on these facts. Furthermore, no specific date was mutually agreed upon to close this transaction. It was unreasonable for the executor to afford no prior notice of termination whatsoever to Mr. Murrell. Although not objecting immediately upon notification, Mr. Murrell rejected .the notice within two days and continued to assert his right to purchase the stock. The record shows Mr. Murrell made substantial efforts to obtain financing from both Michigan and out-of-state banks. Manufacturers National Bank did reject his application on January 21. An application was before the Central Loan Committee of Michigan National Bank of Port Huron the following Wednesday and approved on February 2. He made a continuing effort to place himself in a position to perform under the contract.
In lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we reverse the judgment of the Court of Appeals and reinstate the judgments of the circuit court and probate court. The defendant’s application for leave to appeal as cross-appellant is considered and it is denied, because we are not persuaded that the questions presented on cross-appeal should be reviewed by this Court.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred. | [
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Levin, J.
Lynch was charged with possession of a gas-ejecting device. He was convicted on his plea of guilty to the reduced charge of attempting to carry a gas-ejecting device.
The Court of Appeals, applying the vagueness test outlined in People v Howell, accepted Lynch’s argument that the statute was unconstitutionally vague and overbroad and vacated his conviction, saying:
"Thus, by its failure to sufficiently distinguish between legal (such as a can of hairspray or deodorant) and illegal gas-ejecting devices, the statute does not provide sufficient notice as to what conduct is prohibited. Further, * * * it permits too broad a judgment as to what behavior falls within the ambit of the law’s coverage.”
It said that the statute was not susceptible to a limiting construction and could be saved only by the legislative addition of a specific intent requirement.
We reverse the Court of Appeals. The statute clearly reaches gas-ejecting weapons such as Lynch attempted to carry, and thus the statute is not unconstitutionally vague as applied to him.
I
The prosecutor contends that Lynch is precluded from challenging the statute on vagueness grounds because he failed to raise the issue in Recorder’s Court, and that Lynch does not have standing to assert the overbreadth of the statute in reaching innocent gas-ejecting devices because he was not carrying such an innocent device.
A
While generally a question may not be raised for the first time on appeal, this rule is not inflexible. The question of the statute’s vagueness was the primary issue addressed and briefed both in the Court of Appeals and in this Court. The record provides an adequate basis for decision. Conflicting decisions in the Court of Appeals on this question have rendered the statute of uncertain validity. Law-abiding citizens may wish to carry gas-ejecting devices for reasons of personal security, yet cannot know whether they may do so under the present state of the law. _
B
As noted in People v Howell, "vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand”. Due regard for principles of standing, and recognition that declaring a statute unconstitutional is "'the gravest and most delicate duty that this Court is called on to perform’ ”, mandate that, outside the context of the First Amendment,
"one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.”
Lynch thus will not be heard to assert that the statute is overbroad in reaching innocent gas-ejecting devices where the facts on which he was convicted show that he was carrying a gas-ejecting weapon and, as discussed below, the statute clearly reaches such conduct. _
II
While the statute by its terms appears to reach gas-ejecting weapons, a thorough discussion of the meaning of the statute is appropriate in light of the Court of Appeals holding that the statute is not susceptible to a limiting construction and the conflict among different Court of Appeals panels regarding the statute’s constitutionality.
The statute in effect at the time Lynch was charged provided:
"Any person who shall manufacture, sell, offer for sale or possess any machine gun or firearm which shoots or is designed to shoot automatically more than 1 shot without manual reloading, by a single function of the trigger, or any muffler, silencer or device for deadening or muffling the sound of a discharged firearm, or any bomb, or bomb shell, blackjack, slung shot, billy, metallic knuckles, sand club, sand bag, or bludgeon or any gas ejecting device, weapon, cartridge, container or contrivance designed or equipped for or capable of ejecting any gas which will either temporarily or permanently disable, incapacitate, injure or harm any person with whom it comes in contact, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years or by a fine of not more than $2,500.00.” MCL 750.224; MSA 28.421.
The italicized language was added by a 1929 amendment. 1929 PA 206.
A literal construction of the gas-ejecting-device language, independent of the statutory context, would cover any device capable of emitting a gas that would temporarily harm a person. It has long been the rule in Michigan, however, that a literal construction ought not to be given where it is contrary to the apparent intent of the Legislature.
"The particular inquiry is not what is the abstract force of the words or what they may comprehend, but in what sense were they intended to be understood or what understanding do they convey as used in the particular act.”
Applying the rule of noscitur a sociis, that "[t]he meaning of a word is or may be known from the accompanying words”, we note that the language at issue is included in a statute dealing with such items as machine guns, bombs, blackjacks, metallic knuckles, billies and bludgeons. The objects in this class are not only exclusively weapons, but are weapons used almost exclusively in perpetration of crime. Finding the language at issue in a statute dealing with such a narrow class of weapons is a strong indication that the Legislature intended to reach only gas-ejecting weapons.
This impression is bolstered by examining related statutes. When the Legislature amended the statute to include the language dealing with gas-ejecting devices, it was faced with the choice of including it in 1927 PA 372, § 3, which made the manufacture, sale or possession of the listed objects a strict-liability offense, or in § 4, which required an intent to use the objects there listed "unlawfully against the person of another”. MCL 750.226; MSA 28.423. The Legislature chose to include the language in the section making possession a strict-liability offense. Its choice indicates that it thought of gas-ejecting devices not only as weapons, but as weapons of such danger as to merit their prohibition regardless of the intent of the possessor.
Further, the title to the 1929 statute adding the gas-ejecting-device language indicates that the Legislature was concerned with weapons:
"An Act to regulate and license the selling, purchasing, possessing and carrying of certain firearms; to prohibit the buying, selling or carrying of certain firearms without a license therefor; to prohibit the possession, manufacture or sale of certain weapons, including gas ejecting or emitting weapons, and attachments, except by certain persons licensed to manufacture, sell or possess any gas ejecting or emitting weapon, cartridge or device * * *.” (Emphasis supplied.)
Contemporaneous construction of the statute is also of assistance. A 1931 decision, People v Brown, considered a constitutional challenge to the statute. While that challenge was based on the right to bear arms and was asserted by a defendant convicted of carrying a blackjack, this Court found it necessary to assess the nature of the items which the Legislature intended to prohibit to decide whether the provision was within the police power of the state. That characterization of the intended subject matter of the statute is of precedential significance here:
"The list of weapons in [1929 Compiled Laws] § 16751 * * * is significant and demonstrates a definite intention of the legislature to protect society from a recognized menace. It does not include ordinary guns, swords, revolvers, or other weapons usually relied upon by good citizens for defense or pleasure. It is a partial inventory of the arsenal of the 'public enemy’, the 'gangster’. It describes some of the particular weapons with which he wars on the State and reddens his murderous trail.”
It was thus decided in 1931 that the statute dealt with weapons — weapons of such danger and malevolent associations as to merit total eradication from society, with narrow, licensed exceptions. We see no reason to depart from that decision today.
Lynch was carrying in his pocket "some spray stuff like the mailman would carry” that would "make people cough”. These facts, adduced by the trial judge during Lynch’s plea-taking proceeding, are such as would allow a trier of fact to reasonably draw the inference that Lynch was attempting to carry a gas-ejecting weapon. There was therefore an adequate factual basis for accepting his guilty plea.
An indication that such small, hand-held gas-ejecting weapons are within the intended prohibition of the statute is provided by an opinion issued by the Attorney General in 1932. That opinion states that a "gas pen” could be licensed only to equip certain premises or vehicles and not to be carried on one’s person as a concealed weapon. The Attorney General’s opinion that gas-pen weapons were prohibited by the statute coincides with our analysis of the intended reach of the statute.
Our construction of the statute disposes of the argument, relied on by the Court of Appeals, that the statute reaches non-weapon devices such as hairspray or deodorant.
The order of the Court of Appeals is reversed and Lynch’s conviction is reinstated.
Coleman, C.J., and Kavanagh, Williams, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred with Levin, J.
MCL 750.224; MSA 28.421.
People v Howell, 396 Mich 16; 238 NW2d 148 (1976).
Unpublished opinion (Docket No. 77-1610, November 8, 1978).
Const 1963, art 1, § 17, provides:
"No person shall * * * be deprived of life, liberty or property, without due process of law.”
Dation v Ford Motor Co, 314 Mich 152, 160; 22 NW2d 252 (1946).
See, also, Shavers v Attorney General, 402 Mich 554, 593-594, fn 14; 267 NW2d 72 (1978); People v Snow, 386 Mich 586, 591; 194 NW2d 314 (1972); Perin v Peuler (On Rehearing), 373 Mich 531, 534-535; 130 NW2d 4 (1964); Ridenour v Bay County, 366 Mich 225, 243; 114 NW2d 172 (1962).
See Meek v Wilson, 283 Mich 679, 689; 278 NW 731 (1938).
Compare the decision of the Court of Appeals in this case and in People v Guy, 84 Mich App 610; 270 NW2d 662 (1978), with People v Stinson, 88 Mich App 672; 278 NW2d 715 (1979).
By 1980 PA 346, effective March 31, 1981, the Legislature has amended MCL 750.224; MSA 28.421 to expand the definition of prohibited devices to include those that eject "gas or other substance” and to provide an exception for a device "capable of carrying not more than 35 grams of any combination of active and inert ingredients and which ejects, releases, or emits orthochlorobenzalmalononitrile”, but which ejects no other harmful gas or substance. The amendment makes the use of the excepted device (or its sale to a minor) a misdemeanor, unless the use is either a reasonable use by a police officer in the performance of his or her duty or a reasonable use by a person to protect person or property under circumstances that would justify that person’s use of physical force.
People v Howell, supra, p 21, citing United States v National Dairy Products Corp, 372 US 29; 83 S Ct 594; 9 L Ed 2d 561 (1963).
United States v Raines, 362 US 17, 20; 80 S Ct 519; 4 L Ed 2d 524 (1960), quoting Holmes, J., in Blodgett v Holden, 275 US 142, 148; 48 S Ct 105; 72 L Ed 206 (1927).
United States v Raines, supra, p 21. See also Young v American Mini Theatres, Inc, 427 US 50, 61; 96 S Ct 2440; 49 L Ed 2d 310 (1976); United States v National Dairy Products Corp, supra, p 32; Robinson v United States, 324 US 282, 286; 65 S Ct 666; 89 L Ed 944 (1945).
Lynch claims standing to assert the overbreadth of the statute based on the alleged failure of the judge taking his plea to adduce facts showing that the device he was carrying was a weapon, rather than an innocent device within the impermissibly overbroad reach of the statute. See Ashton v Kentucky, 384 US 195, 198; 86 S Ct 1407; 16 L Ed 2d 469 (1966); Shuttlesworth v Birmingham, 382 US 87, 91-92; 86 S Ct 211; 15 L Ed 2d 176 (1965). Because we conclude that the judge did adduce facts from which a trier of fact could reasonably infer that Lynch was attempting to carry a gas-ejecting device de signed as a weapon, see Guilty Plea Cases, 395 Mich 96, 130; 235 NW2d 132 (1975), this basis for standing is unavailable.
Lynch was charged in late 1976. The statute was amended, effective December 29, 1978, in particulars not relevant to this case. 1978 PA 564. See also footnote 8, describing another recent amendment.
L A Darling Co v Water Resources Comm, 341 Mich 654, 662; 67 NW2d 890 (1955); Webster v Rotary Electric Steel Co, 321 Mich 526, 531; 33 NW2d 69 (1948); Heckathorn v Heckathorn, 284 Mich 677, 681; 280 NW 79 (1938); Stambaugh Twp v Iron County Treasurer, 153 Mich 104, 107; 116 NW 569 (1908).
2A Sands, Sutherland Statutory Construction (4th ed), § 46.07, p 66.
Black’s Law Dictionary (4th ed), p 1209, quoted in State ex rel Wayne County Prosecuting Attorney v Levenburg, 406 Mich 455, 466-467, fn 8; 280 NW2d 810 (1979).
See Webster v Rotary Electric Steel Co, supra, p 531, and cases there cited.
For cases using the title to an act as an aid in construing the provisions of the act, see L A Darling Co v Water Resources Comm, supra, p 662; Heckathorn v Heckathorn, supra, pp 680-681.
1929 PA 206. The title further suggests that the terms in the statute other than "weapons”, i.e., "device, * * * cartridge, container or contrivance”, may refer to "attachments”. The Legislature apparently had in mind a device or contrivance into which a gas cartridge or container could be fitted which, when assembled, was a weapon. It is an indication of the seriousness of the Legislature’s concern that it prohibited the component parts as well as the complete weapon.
People v Brown, 253 Mich 537; 235 NW 245 (1931).
Id., p 542.
1929 PA 206, § 6-a provided, in part:
"Said concealed weapons licensing board may issue licenses to any bank, trust company, armored car company, railway company, express company, or other company, institution, copartnership or individual having in its, their, or his possession large sums of money or other valuables, authorizing such license to equip the premises or vehicles under its, their or his control with gas ejecting devices to be used solely for the purpose of protecting such premises or vehicles and the persons or property therein from criminal assaults.” MCL 28.426a; MSA 28.94.
Guilty plea hearing, October 7, 1976.
Id.
Guilty Plea Cases, supra, p 130.
OAG, 1930-1932, p 568 (May 10, 1932). | [
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Per Curiam.
GCR 1963, 785.7(1) provides in part:
"Speaking directly to the defendant, the court shall tell him:
"(b) the maximum possible prison sentence for the offense;
"(d) the mandatory minimum prison sentence, if any, for the offense.”
These cases all involve, in varying degrees, a failure to comply with this rule. We adhere to the position announced in 1975 and reiterated in 1977 that a failure to comply with Rule 785.7(1), subds (b) and (d) requires that the resulting plea-based conviction be set aside. While it is clear that each of these guilty pleas involved "sentence bargaining” during which the judge agreed to limit the range of his sentencing discretion, that fact does not alter the responsibility of the judge under Rule 785.7(1), subds (b) and (d).
I
A
Abraham Jones pled guilty to two counts of armed robbery on February 23, 1979. The judge advised him:
"I have told your attorney to inform you that should I accept these pleas of guilty, that I will impose a sentence of no more than 10 to 15 years.
"It is conceivable that after receiving the presentence report that I will sentence you to a lesser minimum.
"But it’s always possible that I would sentence you to 10 to 15 years.”
The judge did not tell the defendant that he could not be put on probation for armed robbery nor did the judge tell the defendant that the maximum possible sentence was life imprisonment. Because of these omissions, the defendant argued in the Court of Appeals that his plea should be set aside. The prosecutor responded with a motion to affirm which the Court of Appeals granted on November 13, 1979. The defendant filed a request for review in this Court._
B
Terrence Grant pled guilty to nine counts of armed robbery and one count of possession of a firearm in the course of a felony on October 10, 1978. Albert Grant pled guilty to two of the armed robberies in which Terrence Grant was involved and possession of a firearm in the commission of one armed robbery. The judge essentially told them each of the sentence bargain that had been negotiated: 13 to 25 years on the underlying felony and an additional 2 years on the firearm conviction.
The defendants argued in the Court of Appeals that they had been advised neither of the maximum sentences nor the mandatory minimum. In an unpublished per curiam opinion, the Court of Appeals agreed and reversed all the convictions. The prosecutor has filed applications for leave to appeal which address the same fundamental issue as that in Jones.
II
In the Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975), we tempered the rule of People v Shekoski, 393 Mich 134; 224 NW2d 656 (1974), that any deviation from Rule 785.7 required reversal of a plea-based conviction and said, "Noncompliance with a requirement of Rule 785.7 may but does not necessarily require reversal.” The effect of noncompliance, we added, "will depend on the nature of the noncompliance”. With respect to a failure to inform the defendant of the maximum and any mandatory minimum prison sentence, however, we stated categorically that failure "will continue to require reversal”:
"The rule does not require the judge to inform the defendant of all sentence consequences — only the maximum sentence, any mandatory minimum and, as appears below, if he is on probation or parole, the possible effect on his status as a probationer or parolee.
"The rule reflects the extent to which this Court is willing to impose on the judge the obligation of informing the defendant of such consequences. A failure to impart the information so required by this subsection (b) [now (b) and (d)] will continue to require reversal.” 395 Mich 118.
In People v Beaty, 72 Mich App 159; 249 NW2d 337 (1976), the Court of Appeals said it was sufficient to satisfy the rule for the trial judge to have informed the defendant of the maximum penalty at the arraignment. Judge Thomas M. Burns dissented:
"The procedure under subrule 785.7[(1)(b)] was expressly made mandatory. GCR 1963, 785.7[4]. In Guilty Plea Cases, 395 Mich 96, 118; 235 NW2d 132 (1975), the Supreme Court reaffirmed the rule of strict compliance with respect to this requirement:
" 'The rule reflects the extent to which this Court is willing to impose on the judge the obligation of informing the defendant of such consequences. A failure to impart the information so required by this subsection (b) will continue to require reversal.’
"The majority accepts the prosecutor’s argument that the error was not reversible because the defendant was told what the maximum sentence was at his arraignment four months prior to the entry of his guilty plea. This has nothing to do with the requirement that the defendant be advised of the fact by the trial judge, at the guilty plea hearing.” 72 Mich App 160-161.
We peremptorily reversed "for the reasons stated by Judge Thomas M. Burns in dissent”. 400 Mich 813 (1977).
III
The judges in these cases
—did not tell Abraham Jones that the maximum sentence for armed robbery is life imprisonment; and
—did not tell Terrence Grant or Albert Grant that the maximum sentence for armed robbery is life imprisonment or that possession of a firearm in the course of a felony carries a mandatory two-year term of imprisonment.
We once again advise the bench and bar that there must be strict compliance with Rule 785.7(1), subds (b) and (d). Consequently, in lieu of granting leave to appeal, we affirm the judgments of the Court of Appeals in the Grants’ appeals, reverse the judgments of the Court of Appeals in Jones’ appeals, and set aside those plea-based convictions. We remand all the cases to the Recorder’s Court for the City of Detroit for further proceedings.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975).
People v Beaty, 400 Mich 813 (1977).
We do not address the propriety of a judge’s participation in the bargaining process, which is an issue before the Court in People v Briggs (Docket No. 64571) and People v Killebrew (Docket Nos. 64397, 64398), leave to appeal granted 408 Mich 958, 959 (1980).
One of Terrence Grant’s armed robbery convictions and one of Albert Grant’s, in Recorder’s Court No. 78-05895, are not before us in these appeals. Consequently, our judgment order does not affect those convictions.
395 Mich 113.
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Levin, J.
(for reversal). William H. Heard seeks to recover no-fault automobile liability insurance benefits for injuries suffered when he was struck by an automobile while he was pumping gasoline, at a self-service station, into a vehicle owned by him. Heard was pinned between his vehicle and the vehicle which struck him.
Heard, who had not purchased no-fault insurance for his vehicle, brought this action to recover no-fault benefits from State Farm Mutual Automobile Insurance Company, the insurer of the vehicle which struck him.
The circuit court granted State Farm summary judgment, dismissing Heard’s complaint on the ground that the no-fault act provides that a person is not entitled to no-fault personal protection insurance (PIP) benefits if he is the owner of an uninsured "motor vehicle involved in the accident” (§ 3113 of the no-fault act). The Court of Appeals affirmed._
We reverse and remand for trial because we are of the opinion that a parked vehicle is not "involved in the accident” unless one of the exceptions to the parked vehicle provision (§ 3106) is applicable. Those exceptions spell out when a parked vehicle is deemed to be in use as a motor vehicle; "[e]ach exception pertains to injuries related to the character of a parked vehicle as a motor vehicle — characteristics which make it unlike other stationary roadside objects that can be involved in vehicle accidents”. Miller v Auto-Owners Ins Co, 411 Mich 633, 640; 309 NW2d 544 (1981). (Emphasis supplied.)
At the time of the accident, Heard’s vehicle was not in use as a motor vehicle; rather, it was like "other stationary roadside objects that can be involved in vehicle accidents”. Heard was entitled to PIP benefits from State Farm. § 3115(l)(a).
I
The disqualification of an uninsured owner from entitlement to no-fault benefits is not absolute. While the no-fault act does indeed provide that the owner of an uninsured "motor vehicle involved in the accident” is not entitled to recover PIP benefits, the converse is equally true: the owner of an uninsured vehicle is entitled to recover PIP benefits if his uninsured motor vehicle is not "involved in the accident”. An owner is entitled to PIP benefits, although he has not insured his vehicle, if he suffers injury in a motor vehicle accident while he is a pedestrian, a bicyclist, a motorcyclist, or a passenger in another vehicle.
Since the penalty for failing to purchase no-fault insurance is limited to disqualification for benefits when the uninsured vehicle is involved in the accident, it begs the question to argue that Heard is "seeking to take advantage” of those who have, contributed to the system. Because Heard’s uninsured vehicle was not involved in the accident and he was a pedestrian and not a motorist or occupant of a motor vehicle (or, if one prefers, he was more like a pedestrian than a motorist or occupant), he is as much entitled — under the terms and policies of the no-fault act — to recover from the insurer of the vehicle that struck him as is a pedestrian or motorcyclist who does not own an automobile (or a pedestrian or motorcyclist who does own an automobile but who, like Heard, has not purchased no-fault insurance) and who also has not contributed "to the fund from which benefits are to be paid”.
II
The dissenting opinion states:
"To determine whether a vehicle is involved in an accident, it is necessary to decide the required causal relationship between the injury and the uninsured vehicle. We hold that when one is maintaining his vehicle at the time of an accident, as by pumping gasoline, and is pinned between his car and another car as a result of the accident, there is a sufficient causal connection between his injury and his automobile to constitute involvement. The mere fact that plaintiff’s automobile was stationary does not mean that the vehicle was not involved. Physically, even if a motor vehicle hits a tree or pole, those things are 'involved’ in the accident. If those things had not been at the scene, there might not have been any accident at all, and certainly any accident that did occur would be of a different nature without them. Therefore, plaintiff’s automobile was involved in the accident, and thus, as an uninsured motorist, plaintiff is precluded from recovering no-fault benefits.”
The liability of a no-fault insurer does not depend on there being a "causal relationship” between the accident or injury and a vehicle. While there is often a causal relationship between the insured vehicle and the accident, a no-fault insurer may be responsible although the insured vehicle is not a cause of the accident. For example, the no-fault insurer of an insured person is subject to liability if the insured person or certain members of his household suffer injury while pedestrians or occupants of other vehicles.
Just as the absence of causal relationship or of its corollary, fault, does not necessarily relieve the no-fault insurer of liability, so too the presence of a "causal relationship” does not resolve the question whether a particular vehicle is "involved” for the purposes of the act. Whether a vehicle is "involved” cannot be determined by abstract reasoning or resort to dictionary definitions. It depends on the meaning derived from the purpose and structure of the no-fault act.
While there will generally (perhaps always) be some causal relationship between the loss incurred and a "vehicle involved in the accident”, it does not follow that whenever there is any causal relationship the vehicle is "involved”. "But for” causal analysis would "involve” a vehicle which drops off a member of a car pool who, after he reaches the curb, is struck crossing a street; a vehicle which runs out of gas where a person who was an occupant is struck walking along the highway to a service station; and a vehicle left in a parking lot where a person who was an occupant is struck crossing the street. "But for” analysis could even involve a disabled automobile left at home occasioning the use of other transportation setting in motion a chain of events which lead to accidental injury of the owner of the disabled vehicle, members of his family and other persons.
"But for” analysis can, indeed, be limited by interposing a requirement of physical proximity. Because Heard was pinned between his vehicle and the offending vehicle, his vehicle is involved; or because he, rather than a service station attendant, was pumping the gasoline, his vehicle is involved. Heard had, he testified on deposition, been leaning against his vehicle, and State Farm argues that for that reason also his vehicle is involved.
We are persuaded, however, on examination of the no-fault act as a whole, that disqualification for benefits and the distribution of losses between insurance carriers (which depends in some circumstances on the meaning given the term "vehicle involved in the accident”, see part III) were not meant to depend on such adventitious circumstances. Disqualification and loss distribution does not turn on whether a person is pinned against a gasoline pump, the wall of a service station, a tree, his vehicle, or another vehicle unless the vehicle is being used as a motor vehicle. When a vehicle is parked, it is deemed not to be in use as a motor vehicle, and, for purposes of the act, it is like a gasoline pump, the wall of a service station, or a tree.
This Court observed in Miller v Auto-Owners, p 639:
"Injuries involving parked vehicles do not normally involve the vehicle as a motor vehicle. Injuries involv ing parked vehicles typically involve the vehicle in much the same way as any other stationary object (such as a tree, sign post or boulder) would be involved. There is nothing about a parked vehicle as a motor vehicle that would bear on the accident.” (Emphasis in original.)
Ill
It is apparent, upon examination of the sections of the no-fault act other than § 3113 (concerning disqualification), that a parked motor vehicle is indeed regarded for purposes of the no-fault act as if it were a "tree or a pole”. Just as the owner of a tree or pole is not required to purchase no-fault insurance, neither is the insurer of a parked motor vehicle subject to liability for no-fault benefits unless one of the parked vehicle exceptions is applicable.
A
A basic principle of the no-fault act is that neither a motorist nor his no-fault insurer is subject to liability for damage to a moving vehicle, but that his no-fault insurer is subject to liability for damage to a parked vehicle. That principle is expressed in language which indicates that a parked vehicle is not "involved” in an accident with a moving vehicle.
A no-fault insurer is required to pay property protection insurance benefits for damage to tangible personal property (§ 3121). Such benefits are not, however, payable for damage to motor vehicles and their contents — each owner is required to purchase his own collision insurance — "unless the vehicle is parked in a manner as not to cause unreasonable risk of the damage which occurred”. § 3123(l)(a). These provisions of the no-fault act mean that the no-fault insurer of a moving vehicle which collides with a parked vehicle is obliged to pay, without regard to fault, property protection insurance benefits to the owner of the parked vehicle for damage to the vehicle and its contents.
In Miller, pp 639-640, fn 1, this Court said of § 3123(1)(a):
"Similarly, § 3123 of the act excludes damage to motor vehicles from the statutory obligation to pay benefits for damage to property, unless the motor vehicle is parked in a manner so as not to cause an unreasonable risk of the damage that occurs. MCL 500.3123(l)(a); MSA 24.13123(l)(a). A properly parked motor vehicle is thus treated under the act as non-vehicular property for purposes of the payment of property protection insurance benefits.”
The next subsection, 3123(1)(b), provides that property protection insurance benefits are not payable for property owned by a person covered by a no-fault policy if such person was the owner or operator of a "vehicle involved in the motor vehicle accident out of which the property damage arose”. (Emphasis supplied.)
It thus appears that subdivisions (a) and (b) of § 3123(1) are complementary. A no-fault insurer is not required to pay property protection benefits for damage to a motor vehicle or its contents. Nor is it required to pay such benefits for personalty owned by a person covered by a no-fault policy in respect to an owned or operated "vehicle involved in the motor vehicle accident out of which the property damage arose”. Nevertheless, the no-fault insurer of a moving vehicle that strikes a parked vehicle is subject to liability for damage to contents as well as for damage to the vehicle.
Reading the two subdivisions together, a parked vehicle is not "involved in the motor vehicle accident out of which the property damage arose”. If a parked vehicle were held to be involved in a motor vehicle accident, the operative effect of "and their contents” (§ 3123[l][a]) would be largely eliminated because, under § 3123(l)(b), benefits are not payable for personalty (contents) located in an involved vehicle owned or operated by a person (or family members domiciled in his household) cov ered by no-fault insurance. The incongruous result of such a construction would be that while the insured owner of a parked vehicle is entitled to recover (without regard to fault) for loss of the vehicle, neither he nor any family member domiciled in his household could recover for loss of the contents of the vehicle, and a non-family member alone could recover (without regard to fault) for contents left in the parked vehicle.
B
Nor would the proffered construction be consistent with § 3125 which states that a person suffering accidental property damage shall claim property protection insurance benefits from the insurers of owners (or of operators) of "vehicles involved in the accident”. (Emphasis supplied.) Under the proffered construction, the no-fault insurer of the parked vehicle would contribute to the cost of reimbursing its insured for damage to the parked vehicle and its contents although a principle of the act is that a no-fault insurer has no liability to its insured for property damage unless he chooses to purchase collision or other insurance.
C
Another section of the act, § 3115(1), provides that a person who is not covered by a no-fault policy who suffers accidental bodily injury while not an occupant of a motor vehicle is entitled to PIP benefits from insurers of owners (or of operators) of "motor vehicles involved in the accident”, (Emphasis supplied.) Suppose a motor vehicle collides with the rear of a properly parked vehicle which moves forward and strikes a pedestrian who is not insured. In the circumstance where another vehicle is involved, it is opposed to a principle of the no-fault act to require the insurer of the parked vehicle — regarded under the act as a "stationary roadside object”, Miller v Auto-Owners, supra, p 640 — to contribute to the payment of PIP benefits.
D
The construction which we believe to be correct is consistent with § 3111 which makes PIP benefits portable throughout the United States and Canada for persons covered by a no-fault policy and for occupants of a "vehicle involved in the accident”. (Emphasis supplied.) By reason of the exceptions to the parked vehicle provision, a parked vehicle is deemed to be involved in the accident where the injury was sustained by a person while "occupying” a vehicle. § 3106(l)(c). In such a case, the injury is sustained as a result of the use of the vehicle as a motor vehicle. The vehicle, although parked, is not a tree or a pole insofar as the occupant is concerned.
IV
We have considered whether this Court’s decision in Miller v Auto-Owners requires a different result. In Miller, this Court held that an insured owner is entitled to PIP benefits for injuries arising from the maintenance of his vehicle whether it is deemed to have been parked or not. Miller concerned a situation where no vehicle was involved in the accident unless it was the insured’s vehicle.
Where no-fault liability arises from maintenance, the injury results from use of the vehicle as a motor vehicle, as when a battery or fuel line explodes or, as in Miller, a vehicle falls upon and injures a person. Heard’s injury did not arise from the maintenance or use of an uninsured vehicle as a motor vehicle, but from the operation and use of the vehicle insured by State Farm as a motor vehicle. The only vehicle being used as a motor vehicle at the time of the accident was the vehicle insured by State Farm. Heard’s vehicle was a "tree or pole” for purposes of the act.
We reverse and remand to the circuit court for further proceedings consistent with this opinion.
Kavanagh, Ryan, and Blair Moody, Jr., JJ., concurred with Levin, J.
"Sec. 3113. A person is not entitled to be paid personal protection insurance benefits for accidental bodily injury if at the time of the accident any of the following circumstances existed:
"(b) The person was the owner or registrant of a motor vehicle involved in the accident with respect to which the security required by subsections (3) and (4) of section 3101 was not in effect.” MCL 500.3113; MSA 24.13113.
"Sec. 3106. (1) Accidental bodily injury does not arise out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle unless any of the following occur:
"(a) The vehicle was parked in such a way to cause unreasonable risk of the bodily injury which occurred.
"(b) Except as provided in subsection (2), the injury was a direct result of physical contact with the equipment permanently mounted on the vehicle, while the equipment was being operated or used or property being lifted onto or lowered from the vehicle in the loading or unloading process.
"(c) Except as provided in subsection (2) for an injury sustained in the course of employment while loading, unloading, or doing mechanical work on a vehicle, the injury was sustained by a person while occupying, entering into, or alighting from the vehicle.
"(2) Accidental bodily injury does not arise out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle if benefits under the worker’s disability compensation act of 1969, Act No. 317 of the Public Acts of 1969, as amended, being sections 418.101 to 418.941 of the Michigan Compiled Laws, are available to an employee who sustains the injury in the course of his or her employment while loading, unloading, or doing mechanical work on a vehicle unless the injury arose from the use or operation of another vehicle.” MCL 500.3106; MSA 24.13106.
The foregoing reflects amendments made by 1981 PA 209. The editor’s note to the Michigan Compiled Laws Annotated states:
"1981 Amendment. Inserted the subsection numbering; in subsec. (l)(b), inserted 'the’ following 'contact with’, and 'Except as provided in subsection (2),’; in subsec. (l)(c), inserted 'Except as provided in subsection (2) for an injury sustained in the course of employment while loading, unloading, or doing mechanical work on a vehicle,’; and added subsec. (2).
"P.A. 1981, No. 209, § 2, provided:
" 'This amendatory act shall take effect January 1, 1982 and shall be applicable to all causes of action which occur after the effective date of this amendatory act.’
"P.A. 1981, No. 209, was ordered to take immediate effect and was approved Dec. 30,1981.”
See also Miller v Auto-Owners Ins Co, 411 Mich 633; 309 NW2d 544 (1981), discussed in fn 6.
"Sec. 3115. (1) Except as provided in subsection (1) of section 3114, a person suffering accidental bodily injury while not an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:
"(a) Insurers of owners or registrants of motor vehicles involved in the accident.
"(b) Insurers of operators of motor vehicles involved in the accident.” MCL 500.3115; MSA 24.13115.
Post, p 159 (Williams, J.).
Id.
MCL 500.3114; MSA 24.13114.
See fn 2 and accompanying text. The no-fault insurer is also subject to liability "without regard to whether [the] vehicle might be considered 'parked’ at the time of the injury” where the injury involved the maintenance of the vehicle as a motor vehicle. See Miller v Auto-Owners, supra, p 641.
The act was amended by 1979 PA 145 to subject owners and operators to liability up to $400 for damage to motor vehicles to the extent that the damages are not covered by insurance. MCL 500.3135(2)(d); MSA 24.13135(2)(d).
"Sec. 3121. (1) Under property protection insurance an insurer is liable to pay benefits for accidental damage to tangible property arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle subject to the provisions of this section and sections 3123, 3125 and 3127.
"(2) Property protection insurance benefits are due under the conditions stated in this chapter without regard to fault.
"(3) Damage to tangible property consists of physical injury to or destruction of the property and loss of use of the property so injured or destroyed.” MCL 500.3121; MSA 24.13121.
"Sec. 3123. (1) Damage to the following kinds of property is excluded from property protection insurance benefits:
"(a) Vehicles and their contents, including trailers, operated or designed for operation upon a public highway by power other than muscular power, unless the vehicle is parked in a manner as not to cause unreasonable risk of the damage which occurred.
"(b) Property owned by a person named in a property protection insurance policy, the person’s spouse or a relative of either domiciled in the same household, if the person named, the person’s spouse, or the relative was the owner, registrant, or operator of a vehicle involved in the motor vehicle accident out of which the property damage arose.” MCL 500.3123; MSA 24.13123.
If the owner has purchased collision or other insurance, the no-fault insurer is obligated to reimburse the owner’s insurer(s).
See fn 10.
"Sec. 3125. A person suffering accidental property damage shall claim property protection insurance benefits from insurers in the following order of priority: insurers of owners or registrants of vehicles involved in the accident; and insurers of operators of vehicles involved in the accident.” MCL 500.3125; MSA 24.13125.
See fn 10 above.
Accordingly, we disapprove of Gutierrez v Dairyland Ins Co, 110 Mich App 126; 312 NW2d 181 (1981), leave to appeal applied for, holding that both vehicles are involved in a factual situation similar to that presented in the instant case except that the person pinned was a service station attendant who was not covered by a no-fault policy and the question was whether the insurer of the parked vehicle was required to contribute to the payment of PIP benefits.
"Sec. 3111. Personal protection insurance benefits are payable for accidental bodily injury suffered in an accident occurring out of this state, if the accident occurs within the United States, its territories and possessions or in Canada, and the person whose injury is the basis of the claim was at the time of the accident a named insured under a personal protection insurance policy, his spouse, a relative of either domiciled in the same household or an occupant of a vehicle involved in the accident whose owner or registrant was insured under a personal protection insurance policy or has provided security approved by the secretary of state under subsection (4) of section 3101.” MCL 500.3111; MSA 24.13111. | [
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Kavanagh, J.
The issue in this case is whether the defense of "no valid agreement to arbitrate” may be raised in an action to confirm or enforce an arbitration award. We hold that it may.
Plaintiffs petition, brought pursuant to GCR 1963, 769.8, alleged that an arbitration award in the amount of $2,351.71 had been entered by the commercial arbitration tribunal of the American Arbitration Association on August 4, 1977, and asked that the award be confirmed.
On March 31, 1978, at a hearing in Wayne Circuit Court, defendant filed an answer and supporting affidavit specifically denying that the arbitrator had been appointed pursuant to law and that Furney Simpson, a former employee of defendant, had been authorized to execute any contracts on behalf of defendant. No representative of defendant had appeared at the arbitration hearing. Neither notice of submission of the claim to arbitration nor receipt of the arbitrator’s award is disputed by defendant. The court affirmed the award and judgment was entered thereon.
The Court of Appeals affirmed, concluding that defendant had not timely raised the invalidity of the arbitration agreement.
We disagree.
The defense of "no valid agreement to arbitrate” is a direct attack on the exercise of jurisdiction of both the arbitrator and the circuit court. The decision to submit disputes to arbitration is a consensual one. "Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” J Brodie & Son, Inc v George A Fuller Co, 16 Mich App 137, 145; 167 NW2d 886 (1969), quoting Atkinson v Sinclair Refining Co, 370 US 238; 82 S Ct 1318; 8 L Ed 2d 462 (1962). It follows that a valid agreement must exist for arbitration to be binding.
GCR 1963, 769 describes proceedings in the circuit court to confirm, enforce or vacate an arbitration award. It is applicable only to statutory arbitrations under MCL 600.5001 et seq.; MSA 27A.5001 et seq. MCL 600.5025; MSA 27A.5025 provides:
"Upon the making of an agreement described in section 5001, the circuit courts have jurisdiction to enforce the agreement and to render judgment on an award thereunder. The court may render judgment on the award although the relief given is such that it could not or would not be granted by a court of law or equity in an ordinary civil action.”
Since MCL 600.5025; MSA 27A.5025 is the jurisdictional basis on which the court may enter judgment on an award, the presence of a binding agreement is a condition precedent to exercise of the court’s jurisdiction. Without such agreement, a dispute would not fall within the scope of GCR 1963, 769, and none of its provisions would apply.
Whenever the jurisdiction of an arbitrator is questioned, it must be determined in order to make an award on arbitration binding. The existence of a contract to arbitrate and the enforceability of its terms is a judicial question which cannot be decided by an arbitrator.
The Court of Appeals, Citing American Motorists Ins Co v Llanes, 396 Mich 113; 240 NW2d 203 (1976), as authority, held that defendant did not raise the issue of "no valid agreement to arbitrate” at the earliest opportunity and thereby waived the defense.
Llanes must be distinguished. The dispute there was over the scope of an acknowledged agreement to arbitrate. Here the dispute is not over the scope but rather the existence of an agreement to arbitrate. The insured in Llanes submitted a claim to arbitration. The insurer participated in the proceeding without raising the issue of the arbitrability of such claim. After a ruling on that claim adverse to it, the insurer first raised the issue of arbitrability of the claim in the circuit court upon a motion to confirm the award.
Llanes stands for the proposition that a party may not participate in an arbitration and adopt a "wait and see” posture, complaining for the first time only if the ruling on the issue submitted is unfavorable.
Defendant here did not participate in the arbitration, but directly raised the issue of the existence of an agreement to arbitrate in defense of a motion to confirm in circuit court.
GCR 1963, 769.2 provides for the parties to either compel or stay arbitration proceedings. The provisions of the court rule are not mandatory. They provide for discretionary application to the court for a preliminary decision as to the existence of an agreement to arbitrate. If plaintiff proceeds without moving the court to compel arbitration, he risks spending time, money and effort, only to have an award vacated or held unenforceable on a later finding that no arbitration agreement was in existence. If a party denying the existence of an agreement fails to seek a stay of the proceedings, he risks a later judicial determination that there was a contract requiring arbitration and of being obligated to the award though he did not participate in the proceedings.
Though it may be preferable and more orderly for a party denying the existence of an agreement to arbitrate to seek an injunction of the proceeding, it is not a mandatory requirement. If a burden must be placed on one of the parties to seek a preliminary judicial determination, it should be on the party seeking to compel arbitration. The notice letter required by statute imposes no duty on someone who has not entered into an agreement to arbitrate to commence any legal proceedings.
Plaintiff maintains that defendant’s assertion that there is no agreement to arbitrate is in effect an application to vacate the award. Because the court rule limits the time for such application to 20 days after delivery of a copy of the award, he argues that defendant should not be heard thereafter to urge such action.
This misperceives the procedure provided by the rule.
The rule’s time limitation binds the moving party, not one who opposes the motion. Here the defendant is not seeking to vacate the award, but simply opposes its confirmation. Since the rule prescribes no time limitation on the interposition of defenses, it would appear proper to allow it whenever it be sought to confirm the award.
We reverse the judgment of the Court of Appeals and remand to the circuit court for a determination of the existence of a binding arbitration agreement.
Coleman, C.J., and Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred with Kavanagh, J.
See J Brodie & Son, Inc v George A Fuller Co, 16 Mich App 137, 141; 167 NW2d 886 (1969).
In Waterford Ass’n of Educational Secretaries v Waterford School Dist, 95 Mich App 107; 290 NW2d 95 (1980), the Court of Appeals stated that a finding of no agreement to arbitrate precludes the power or jurisdiction of an arbitrator to act. The Court also stated, "A lack of jurisdiction was recognized by this Court as a basis for attack of an arbitration award in Brown v Holton Public Schools, 62 Mich App 328; 233 NW2d 274 (1975), vacated on other grounds 397 Mich 71; 243 NW2d 255 (1976)”. Also, in Stowe v Mutual Home Builders Corp, 252 Mich 492, 497; 233 NW 391 (1930), we said that an award outside of the scope of an agreement of arbitration is not'binding, because it has no legal sanction.
See Detroit Demolition Corp v Burroughs Corp, 45. Mich App 72, 79; 205 NW2d 856 (1973). Though the case deals with the arbitrability of specific issues, the same rationale holds for the arbitrability of the entire dispute. Also see 5 Am Jur 2d, Arbitration and Award, § 15, pp 531-532. | [
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Ryan, J.
In this case we are required to determine the effect of the doctrine of comparative negligence on our decisions in Funk v General Motors Corp, 392 Mich 91; 220 NW2d 641 (1974), and Tulkku v Mackworth Rees Division of Avis Industries, Inc, 406 Mich 615; 281 NW2d 291 (1979). Since the defense of comparative negligence serves not to undermine but to enhance safety in the workplace, we are of the view that comparative negligence is available as a defense in those cases where Funk and Tulkku formerly prohibited the application of the contributory negligence defense. We conclude that negligence in the failure to provide an "adequate safety device” in the workplace is therefore subject to the comparative negligence defense, assuming that any evidence of the plaintiff’s negligence exists. The verdict in favor of the defendants is reversed and the cause remanded for retrial under the principles of comparative negligence. Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979).
I
The facts of this case are set forth in full and accurate detail in Justice Moody’s opinion, to which reference is invited. The plaintiff-appellant argues that the jury should not have been instructed that contributory negligence was a defense to the claim that the defendant construction contractors negligently installed or maintained safety devices for the protection of construction workers at the work site.
Although the precise limits of this Court’s opinion in Funk, supra, are unclear, we concur with the result reached by Justice Moody in parts I-III of his opinion. Under Funk, the defense of contributory negligence is unavailable when a construction worker alleges negligence in the failure to provide adequate safety devices on the job. The plaintiff in this case presented sufficient, albeit weak, evidence upon which the jury might have concluded that the plywood sheets covering the openings in the roof were "safety devices” which were negligently installed or maintained. Absent a reconsideration of the Funk doctrine, the plaintiff would be entitled to a new trial on the negligence claim, without the defense of contributory negligence.
However, the defense of contributory negligence as a total bar to recovery would be unavailable upon retrial in any event in light of Placek, supra. We must therefore decide whether the Funk policy of promoting safety in the workplace would be undermined or enhanced by the application of the principles of comparative negligence.
II
In Funk, this Court found the total bar of contributory negligence to be inconsistent with the public policy of promoting safety in the workplace. The Court refused to allow a . general contractor and a landowner to "avoid” liability "by pointing to the concurrent negligence of the injured worker in using the [unsafe] equipment”. Funk, 113-114, quoting Koenig v Patrick Construction Corp, 298 NY 313, 318-319; 83 NE2d 133 (1948). Before Funk, the contractor could entirely avoid liability by convincing the finder of fact that the plaintiff was even 1% negligent. Apparently it was feared that some contractors might succumb to the temptation of employing skilled defense counsel instead of adequate safety devices. As the Court noted in Tulkku, 622:
"To allow defendants in this case to invoke the protection of the contributory negligence doctrine would be tantamount to subverting the very safety concerns that the Koenig and Funk courts extolled as of paramount importance. Such a position might allow a manufacturer to escape its duty of due care * * *:
" 'It would be anomalous to hold that defendant has a duty to install safety devices but a breach of that duty results in no liability for the very injury the duty was meant to protect against.’ ” Quoting Bexiga v Havir Mfg Corp, 60 NJ 402, 412; 290 A2d 281 (1972). (Emphasis added.)
In stark contrast, the defense of comparative negligence never allows a contractor to entirely "avoid” liability and thus "escape” the duty of due care. Under Placek, the defendant must pay the full percentage of damages caused by his negligence. We do not find this partial defense "anomalous” as does our brother; quite the contrary, it would be "anomalous” to hold a defendant liable for damages in excess of the amount causally related to his negligence. The comparative negli gence defense does not provide a strong financial incentive for contractors to breach the duty to undertake reasonable safety precautions.
Our colleague asserts that a worker’s recovery should not be reduced by his own comparative negligence when he works under dangerous conditions, since "considering the current state of the economy” it "would be unrealistic to conclude that workers have a choice not to work”. Unfortunately, some workers are faced with the ultimatum "[i]f you don’t want to work up in the steel, go home”. Funk, 113. If a worker, acting reasonably under all the circumstances, would continue to work under the dangerous conditions, then the trier of fact could not conclude that the worker’s recovery should be reduced, since the worker by definition was not negligent. On the other hand, at some point a worker must be charged with some responsibility for his own safety-related behavior. If a worker continues to work under extremely unsafe conditions when a reasonable worker under all the facts and circumstances would "take a walk”, the trier of fact might appropriately reduce the plaintiffs recovery under comparative negligence. Comparative negligence enhances the goal of safety in the workplace under these conditions, since it gives the worker some financial incentive to act in a reasonable and prudent fashion.
The comparative negligence rule also enhances safety in the workplace by rewarding safety-conscious contractors. Undoubtedly, some contractors allow workers to refuse to work without fear of reprisal until dangerous conditions are reported and corrected. Yet our colleague’s approach treats such a "safe” company identically with an "unsafe” company and prevents the safe company from reducing its damages despite a plaintiff’s flagrant violation of company safety policy. The irrebuttable presumption that all contractors force workers to work under hazardous conditions might well become a grim self-fulfilling prophecy if we refuse to encourage safety-conscious contractors under the doctrine of comparative negligence.
Much the same response is appropriate to the comment that workers often become conditioned to working in dangers and deal with them prudently: continuing to work under those conditions would not constitute negligence on the part of the worker. Further, the contractor-defendant has little incentive to prove that the conditions were so dangerous that the plaintiff should have refused to work, since such an approach will probably increase rather than decrease the defendant’s liability under comparative negligence. This is in contrast to the contributory negligence rule, which encouraged such a defense strategy.
In Tulkku, we noted that many workers rely on the effectiveness of what appears to be adequate safety equipment. In that case, the worker relied upon a four-palm-button switch that proved to be defective. Such reasonable reliance, absent proof that reasonably prudent press workers do not rely on the device, is not evidence of negligence; thus, no contributory negligence instruction should have been given in Tulkku because the defendant presented no evidence of the plaintiff’s negligence. The Tulkku result would therefore remain the same even after the adoption of comparative negligence, since the worker "cannot and should not be required to temper his or her behavior because of a defect about which the [worker] has no awareness”. Tulkku, 622. Suppose, however, that the press in Tulkku cycled after only three buttons were pushed, but no one was injured. A worker continuing to use the machine and receiving injuries the second time the switch fails should be answerable for his or her negligent behavior because the worker is fully aware of the defect. Yet our brother’s opinion would hold exactly the opposite; the defense of comparative negligence would be unavailable in that situation because the worker has not "wilfully” removed a safety device.
Next, our colleague argues that a worker’s recovery should not be reduced because of his or her "ordinary inadvertence”. To the extent that the plaintiff’s behavior conforms to that of a reasonably prudent worker under all the circumstances (even reasonably prudent workers act as plaintiff did because of job pressures, monotony, and attention to details of their work), the trier of fact is free to find the plaintiff free from negligence. To the extent, however, that "ordinary inadvertence” is merely a euphemism for a worker’s negligence, it should reduce a worker’s recovery. Until today, the notion that "mere inadvertence” should absolve persons from the effects of their negligence has been wholly foreign to our jurisprudence. We see no logical reason why it should immunize this particular class of plaintiffs from the defense of comparative negligence even if, as appears to be the case, we are observing the genesis of a new jurisprudence to be called "safety device” law.
Finally, it is argued that "in most instances” the worker’s negligence will occur later than the defendant’s negligence, making it "difficult” for the jury to accurately arrive at the correct percentage of relative fault. First, no empirical data supports the speculation that in "most” workplace accidents the worker’s negligence happens last and understandably no authority is cited for it. Intuitively, it would seem that in "most” cases, as in Funk and Tulkku, the contractor’s failure to provide an adequate safety device is probably a continuing omission which is concurrent with the employee’s conduct that produces the injury. Secondly, our brother’s opinion would abolish comparative negligence even in those cases where the contractor’s negligence is "last” and the worker’s negligence is the more distant in time. Thirdly, the idea that juries are not competent to make difficult allocations of proportional fault under comparative negligence is simply erroneous. Finally, on the basis of the speculation that the jury will reach the wrong allocation of fault, our colleague’s approach guarantees that recovery will not be in proportion to fault, since if the defendant is negligent at all he pays 100% of plaintiffs damages. Truly this is a case of the cure being worse than the illness. As this Court acknowledged in Placek:
" 'What pure comparative negligence does is hold a person fully responsible for his or her acts and to the full extent to which they cause injury. That is justice.’ ” 405 Mich 661.
Our colleague’s approach today would hold these defendants responsible for their acts above and beyond the extent to which they cause injury. That is injustice.
Ill
We also agree with the analysis and conclusion in part VII of Justice Moody’s opinion which rejects plaintiff’s claim that retrial should be limited to the issue of damages. While a poll of the jury revealed that five of the six jurors found all defendants to have been negligent, we do not know whether defendants’ negligence was the failure to provide adequate "safety devices” or some other negligent act or omission such as the alleged failure to "adequately supervise and coordinate the activities of workmen on the roof’. Since the failure to adequately supervise was "ordinary negligence” and not "safety device negligence”, under our brother’s analysis the contributory negligence instruction would have been proper as to this claim; similarly, on retrial, comparative negligence will be available as a defense to this claim.
However, as noted, we do not limit the defense of comparative negligence to negligence not involving "safety devices”. While that ambiguous and abstruse term was utilized in Funk and again in Tulkku, nothing in either opinion suggests a compelling reason why this apparently new subspecies of negligence should be treated differently than any other type of negligence. Indeed, in Funk, the Court noted that the defendants failed to give the plaintiff a "safety indoctrination”; yet that omission can hardly be forced into the category of failing to provide a "safety device”. The misguided emphasis on the magic words "safety device” has already begun to lead to absurd, confusing, and therefore unfair results. As to non-safety device negligence, it appears that ordinary negligence and comparative negligence principles will apply. As to safety device negligence, ordinary negligence evidently applies as to liability, but a special comparative negligence instruction is required under my brother’s analysis if the plaintiff "wilfully” removed a safety device.
The confusion perpetuated by that approach in this case is both unsound and unnecessary. By reinventing the comparative negligence wheel with "wilful removal of a safety device” language, our colleague would create a two-tier tort system, general negligence versus "safety device” negligence, each with its own set of instructions. As discussed above, the application of comparative negligence to all workplace negligence satisfies the Funk policies as well as encourages safer behavior by both contractors and workers. We prefer a unitary approach to negligence under which both the plaintiff and defendant are charged with the duty to act reasonably under all the circumstances.
IV
Since the issue is likely to arise upon retrial, we must also consider the appropriate instructions under MCL 408.853; MSA 17.49(3), since repealed. We agree that sufficient evidence was presented to justify an instruction under the statute. We also agree that under Zeni v Anderson, 397 Mich 117, 143; 243 NW2d 270 (1976), the trial court should instruct that violation of the statute constitutes a prima facie case of negligence, rather than negligence as a matter of law.
We disagree with the wisdom or necessity of adopting, at this appellate remove, our colleague’s definition, or any definition, of the word "wilfully” as used in the since-repealed statute. Neither party requested a definitional instruction in the trial court or objected to the judge’s failure to define the term sua sponte. We leave it to the trial court to decide in the first instance which of the parties’ proposed instructions accurately represents the law on this point.
V
As to defendant J & L Roofing Company’s cross-appeal that the trial court erred in denying its motions for directed verdict, we agree fully with the result and reasoning of Justice Moody in part VI of his opinion. The case is therefore remanded for trial on defendant Leonard Construction Company’s claim for indemnification.
The decision of the Court of Appeals is reversed.
Coleman, C.J., and Kavanagh and Fitzgerald, JJ., concurred with Ryan, J.
Adopted in Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979).
This question was expressly reserved by the Court in Tulkku, 623.
At the extreme, Funk and Tulkku could be read to abolish the defense of contributory negligence in all actions where personal injury results from the defendant’s negligence. All potential negligence defendants have a common-law or legislatively imposed duty to take reasonable precautions for the safety of others. If any negligence defendant "could avoid this duty by pointing to the concurrent negligence of the [plaintiff] * * * the beneficial purpose of the statute [or common law] might well be frustrated and nullified”. Funk, 113-114, quoting Koenig v Patrick Construction Corp, 298 NY 313, 318-319; 83 NE2d 133 (1948).
If the plaintiffs decedent had been "grossly negligent”, a defense would be available. See Funk, 113, fn 18, citing Bowman v Redding & Co, 145 US App DC 294; 449 F2d 956 (1971).
Admittedly, the prospect of paying an additional arbitrary penalty above and beyond damages proximately caused by one’s own negligence might provide an increased incentive to prevent accidents. But the proposed penalty is in inverse proportion to the defendant’s culpability, since the 1% negligent defendant pays a hundredfold penalty while the 100% negligent defendant pays no penalty at all. Conversely, the more negligent the plaintiff, the greater his windfall recovery. The Court should not attempt to impose administrative penalties for safety violations under the guise of administering tort remedies. The Legislature has already enacted such an administrative scheme of inspections and fines under MIOSHA. See MCL 408.1001 et seq.; MSA 17.50(1) et seq.
Such a salutary policy might be adopted unilaterally, or under the terms of a collective-bargaining agreement.
The automobile operator who crosses the center line and crashes head-on into another vehicle cannot claim as a defense "mere inadvertence” due to "the monotony of the task”. The surgeon who operates on the wrong leg may do so "inadvertently” due to "job pressures”. The pedestrian who crosses against the traffic light is negligent even if he did so "inadvertently” while thinking about the details of his work back at the office.
Suppose the plaintiff in this case negligently removed the nails and the cover from the opening on Monday. The contractor negligently failed to reinstall the cover on Tuesday, Wednesday and Thursday. On Friday, through no fault of his own, the plaintiff falls through the hole. The contractor’s negligence in failing to correct the safety problem would be closer in time to the injury than the plaintiffs negligence in removing the cover.
As Justice Williams wrote in his separate opinion in Kirby v Larson, 400 Mich 585, 646; 256 NW2d 400 (1977), "Those who argue that comparative negligence is both confusing and difficult to administer both underestimate the modern jury and misread the facts.” Justices Levin and Kavanagh joined Justice Williams in Kirby; the entire Court vindicated Justice Williams’ position by adopting comparative negligence in Placek, supra.
See also United States v Reliable Transfer Co, Inc, 421 US 397, 406; 95 S Ct 1708; 44 L Ed 2d 251 (1975), adopting comparative negligence in the law of admiralty: "That a vessel is primarily negligent does not justify its shouldering all responsibility”.
At the time of decedent’s death, MCL 408.853; MSA 17.49(3), provided as follows:
11 No employee shall wilfully remove, displace, damage, destroy or carry off any safety device or safeguard furnished or provided for use in any employment or place of employment, or interfere in any way with the use thereof by any other person.”
The statute was subsequently amended and the word "wilfully” was deleted. MCL 408.1012; MSA 17.50(12):
"An employee shall:
"(a) Comply with rules and standards promulgated, and with orders issued pursuant to this act.
"(b) Not remove, displace, damage, destroy, or carry off a safeguard furnished or provided for use in a place of employment, or interfere in any way with the use thereof by any other person.” 1974 PA 154, effective January 1, 1975.
We decline to speculate about the effect of Placek and the products liability statute, MCL 600.2945; MSA 27A.2945, on the law of products liability. This cáse, as well as Tulkku and Funk, are negligence cases. The cases cited in our brother’s opinion for the proposition that comparative negligence should not apply are inapplicable. Zerby v Warren, 297 Minn 134, 141; 210 NW2d 58 (1973), held that no comparative negligence defense was available under a statute imposing strict liability for selling model airplane glue to a minor; Suter v San Angelo Foundry & Machine Co, 81 NJ 150; 406 A2d 140 (1979), was a strict liability case holding that comparative negligence was unavailable under those facts but noting that comparative negligence is a defense in some strict liability cases. See Ettin v Ava Truck Leasing, Inc, 53 NJ 463; 251 A2d 278 (1969); Cintrone v Hertz Truck Leasing & Rental Service, 45 NJ 434; 212 A2d 769 (1965). | [
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Fitzgerald, C.J.
Plaintiffs appeal trial court rulings which precluded the advancement of a theory that defendant Spider Staging Sales Company, Inc., breached its duty to instruct on or give directions for the safe rigging of a powered scaffold which it manufactures and sells. The Court of Appeals concluded that a manufacturer does not have a duty to provide instructions for the safe use of its product apart from its duty to warn. We hold only that on the facts of this case this defendant was under no duty to instruct on or give directions for the safe rigging of its product.
I
This products liability action is an outgrowth of a construction accident which occurred on July 7, 1970, at the site of the State Employees Credit Union building in Lansing. Plaintiff Howard Ant-cliff was seriously and permanently injured when the support system of a powered scaffold on which he was standing gave way unexpectedly and fell to the ground. AntclifFs safety line apparently failed, and he fell with the scaffold. Antcliff and a coworker personally designed the support system and rigged the scaffold. The scaffold was manufactured and sold by Spider to AntclifFs employer, Austin’s Painters, Flint, Inc.
In a complaint filed on July 5, 1973, and a first amended complaint filed on April 11, 1977, Geraldine Antcliff, for herself and as the legal guardian of Howard Antcliff, her husband, brought an action for damages against the credit union, owner of the building, the general contractor of the construction project, the architect of the building, and Spider. Prior to trial, plaintiffs settled with the general contractor for $900,000 and released the general contractor, the credit union, and the architect.
At trial, plaintiffs were precluded from offering any evidence and from making any argument in support of a theory that Spider was negligent in failing to instruct on or give directions for the safe rigging of the powered scaffolds which it manufactures and sells. The trial court also refused to charge the jury that Spider had a duty to give instructions. In addition, the court stated:
"I instruct you that the defendant Spider Staging has no duty to provide instructions or to educate the users of its product in how to rig, assemble or suspend the Spider Staging units and platform. Therefore, you are not to concern yourself with any claim that Spider Staging had such a duty in this instance. This is not an issue in the case. Spider Staging did not have such duty and you are not to concern yourself with it.”
Plaintiffs’ other theories of liability were presented to the jury. The jury returned a verdict of no cause of action.
Plaintiffs claimed error in the Court of Appeals, because of, inter alia, the adverse trial court rulings and related omissions from the requested jury charge. The Court of Appeals affirmed, concluding, in part, that Michigan law does not impose a duty on a manufacturer to provide instructions for the safe use of its product in addition to any duty to warn. 95 Mich App 224, 235; 290 NW2d 420 (1980).
We denied leave to appeal by order dated September 4, 1980; Ryan, J., would have granted leave. Upon reconsideration, we granted leave to appeal. 409 Mich 903 (1981).
II
Plaintiffs argue here, as in the Court of Appeals, that Michigan has long recognized a duty on the part of a manufacturer to instruct on or give directions for the safe use of its product. Moreover, it is argued, such a duty exists separate and apart from any duty to warn about dangers associated with intended use or foreseeable misuse. In the instant case, plaintiffs contend that since a powered scaffold’s only intended use occurs when the scaffold is suspended, Spider, as manufacturer, was negligent in failing to provide instructions for the safe rigging of its scaffold. _
The Court of Appeals disagreed with plaintiffs’ argument by distinguishing the cases cited in support of it. The Court noted that the decisions in Hill v Husky Briquetting, Inc, 54 Mich App 17; 220 NW2d 137 (1974) (carbon monoxide suffocation), and in Gutowski v M & R Plastics & Coating, Inc, 60 Mich App 499; 231 NW2d 456 (1975) (inhalation of a dangerous chemical), were ultimately grounded on the manufacturer’s negligence in failing to warn, or failing to adequately warn, of the dangerous properties of its product.
Although we agree with the Court’s characterization of these cases, we take pains to write in this case because we perceive no magic in the characterization. There is no bright line between instructions for safe use and warnings, and we decline to fashion one. Products may be accompanied by instructions or warnings or both or neither. Warnings, standing alone, may have no practical relevance without instructions. Instructions may well fade into warnings. A manufacturer’s liability to a purchaser or a user of its product should be assessed with reference to whether its conduct, including the dissemination of information about the product, was reasonable under the circumstances. Liability may not be avoided or imposed by skillful manipulation of labels such as instructions or warnings.
Ill .
"A duty, in negligence cases, may be defined as an obligation, to which the law will give recogni tion and effect, to conform to a particular standard of conduct toward another.” Prosser, Torts (4th ed), § 53, p 324. The terse legal conclusion that a duty is owed by one to another represents a judgment, as a matter of policy, that the latter’s interests are entitled to legal protection against the former’s conduct.
Prosser’s "particular standard of conduct” is classically described as the conduct of a reasonably prudent person in light of the apparent risk. In Moning v Alfono, 400 Mich 425; 254 NW2d 759 (1977) (Fitzgerald and Coleman, JJ., dissenting), we quoted with approval from 2 Restatement Torts, 2d, § 283, p 12: " '[T]he standard of conduct to which [the actor] must conform to avoid being negligent is that of a reasonable man under like circumstances.’ ” 400 Mich 443. This is the so-called standard of care against which a defendant’s conduct is compared. Thus, the standard of care is "[wjhat the defendant must do, or must not do * * * to satisfy the duty”. Prosser, supra, p 324.
In a negligence action, the standard of care is reasonable or due care. Moning v Alfono, supra. Thus, the standard of care required is always the care which a person of reasonable prudence would exercise under the circumstances as they existed. Even though the standard itself never varies, the amount of care and the type of conduct required may vary with the circumstances. Triestram v Way 286 Mich 13; 281 NW 420 (1938) (North, J., and Wiest, C.J., dissenting) (sudden emergency). DePree v Nutone, Inc, 422 F2d 534 (CA 6, 1970) (warnings and instructions for use provided by vertical meat grinder manufacturer negligently misleading to mechanically unsophisticated homemaker).
In our view, the relationship between plaintiff Howard Antcliffs employer, Austin’s Painters, Flint, Inc., and Spider is crucial to an understanding of both the circumstances which actually existed and our resolution of this case.
Austin’s Painters has been in business, primarily as a partnership, since 1888. It is a well-known subcontractor in the construction trade in Michigan. It has been engaged as a subcontractor in major construction projects involving both indoor and exterior work, painting as well as sandblasting. In short, Austin’s Painters is a professional in the construction trade and necessarily highly experienced in the use and rigging of scaffolding equipment.
In addition, there was testimony at trial by Paul Austin that scaffolding rigging techniques were customarily learned on the job, knowledge passing from the more experienced worker to the less experienced worker, that scaffold workers did their own rigging, and that choice of suspension technique was largely a matter of personal preference. Both Paul and Lee Austin and a former Austin’s Painters employee, Robert H. Smith, testified that Austin’s Painters hired experienced workers. Mr. Smith knew of plaintiff Howard AntclifFs prior experience before plaintiff was hired by Austin’s Painters. And plaintiff was, in fact, a journeyman painter.
Spider is a Washington corporation owned by two brothers. It manufactures and sells powered scaffolds and accessories for use with the scaffolds. Its catalogue contains pictures and specifications of this equipment and illustrations of various structures from which its scaffolds may be suspended. The structures depicted include, among others, a building, structural steel, a bridge, a water tower and a smokestack.
The powered scaffold on which Howard Antcliff was working at the time of the accident was one of two such scaffolds purchased from Spider by Austin’s Painters. In 1966, Austin’s Painters purchased its first Spider powered scaffold to aid in the painting of the ceiling of Whiting Auditorium in Flint. This scaffold was delivered with a 23-page service and parts manual.
Richard Crudele, Spider’s local agent, testified that he traveled to Flint at the request of Austin’s Painters to demonstrate how the powered scaffold could be suspended from the ceiling of the Whiting Auditorium and to demonstrate how to use the level-wind mechanism of the scaffold. He further testified that subsequent formal contact with Austin’s Painters was limited to requests for parts and maintenance and the ordering, in 1967, of a second powered scaffold. Although he could not recall a single instance, he stated that he likely had discussed rigging practices with representatives of Austin’s Painters, not as an expert but only in a spirit of "cooperation”. Crudele earlier testified that he did not do business with "people who don’t know what they are doing” such as the ordinary consumer. Later, Crudele stated that Spider was providing a "tool” to be used by professional riggers in their area of expertise. Crudele’s testimony was uncontradicted.
In sum, the evidence adduced at trial establishes that the relationship between Spider and Austin’s Painters and its employees was that of a manufacturer which had designed a product line for professional riggers, doing business with professional riggers. Spider’s catalogue contained primarily technical information about the product line, the significance of which only an experienced rigger would appreciate. The testimony of Spider’s local agent, himself an experienced rigger, reinforces the conclusion that Spider had confined its product to the market of professionals experienced in rigging techniques for scaffolds, a skilled operation learned on the job and over time. The purchase of Spider powered scaffolds by Austin’s Painters, an experienced subcontractor whose work involved extensive use of scaffolding, was a purchase of Spider products by the very professionals Spider sought to reach.
As previously stated, the standard of care involved in a negligence action is that of a person of reasonable prudence under like circumstances. It is this standard against which Spider’s conduct, the failure to provide instructions for the safe rigging of its powered scaffold, must be measured. We emphasize that we deal with a narrow question. Our inquiry focuses only on whether Spider’s standard of care, on these facts, includes a requirement that it instruct on or give directions for the safe rigging of its powered scaffold. We conclude that it does not.
Although the question presented is novel, we do not write on a blank slate. It is helpful to review prior decisions where the issue of a manufacturer’s negligence in the dissemination of information about its product was directly raised. Comstock v General Motors Corp, 358 Mich 163; 99 NW2d 627 (1959); Ebers v General Chemical Co, 310 Mich 261; 17 NW2d 176 (1945); Smith v E R Squibb & Sons, Inc, 405 Mich 79; 273 NW2d 476 (1979) (Levin, J., dissenting).
In Comstock, the plaintiff claimed that the defendant manufacturer was negligent in failing to adequately warn of defective automobile brakes about which it knew. The defendant had conveyed the warning to its dealers but not to purchasers of its 1953 Buicks. The Court concluded that once the defendant had actual knowledge of the defective power brakes, it was under a duty to convey an effective warning to the purchasers of its product.
In Ebers, the plaintiff alleged that the defendant manufacturer breached its implied warranty of fitness for a particular purpose in the marketing of an insecticide with incorrect directions for use. The plaintiff had applied the insecticide as directed and claimed that the application killed his peach trees. The following year, the defendant materially changed its recommended directions for application. It was first observed: "Although plaintiff claims under the theory of an implied warranty, the real question is whether or not defendant was negligent.” 310 Mich 275. The Court quoted with approval the policy enunciated in E I DuPont de Nemours & Co v Baridon, 73 F2d 26, 30 (CA 8, 1934):
" 'A rule which would permit a manufacturing chemist, who offered his product to the public for use in the treatment of plants or animals, to so carelessly prepare his product or to so carelessly direct the manner in which it was to be used as to destroy or injure the property of one who purchased it from a dealer and who in ignorance of its dangers used it for its intended purpose and in accordance with the directions of the manufacturer, and which would deny to the person whose property was injured any redress, although the destruction of his property was the natural, probable, and almost certain consequence of the manufacturer’s negligence, should not, we think, receive the sanction of this or any other court. Our conclusion is that a manufacturer of a proprietary product intended for the specific purpose of preventing or curing the diseases of plants, animals, or human beings, which product when properly used for its intended purpose is either harmless or beneficial, but which when improperly used will cause or is likely to cause material injury, who undertakes to direct or recommend the manner in which it shall be used, owes the duty to those whom the manufacturer, through his advertising and representations, invites to purchase and use the product, of exercising reasonable care commensurate with the dangers involved in giving such directions and in the making of such recommendations. The manufacturer is not an insurer that in every instance and under all circumstances no injury will result from the use of his product as directed or recommended, but if he knows or in the exercise of reasonable care should know that if his product is used as directed or recommended it will cause or be likely to cause material injury, then he is liable to any person who, in reliance upon his representations, directions, and recommendations, uses the product for the purpose and in the manner directed and recommended by the manufacturer and who suffers injury as a direct result, unless it appears that the user also knew or in the exercise of reasonable care should have known that the use of the product would be injurious or would be likely to cause the injuries complained of.’ ” (Emphasis supplied.) 310 Mich 277-278.
In Smith v Squibb, the plaintiff alleged that the defendant drug manufacturer’s warnings were inadequate. Although this Court limited its inquiry to the plaintiff’s implied warranty claim and an evidentiary question, the majority opinion concluded:
"[W]hen the factual issue is not whether the product itself is defective, but is whether the manufacturer has provided adequate warnings, the existence of a product defect and a breach of duty is determined by the same standard — reasonable care under the circumstances. In the context of a product liability case, it has been said that '[t]h.e standard by which a jury determines adequacy is the general negligence standard that liability is created by "conduct which falls below the standard established by law for the protection of others against unreasonably great risks of harm” ’. Gutowski, supra, pp 507-508, quoting from Prosser, Law of Torts (4th ed), p 145.” 405 Mich 89-90.
In addition, it is settled law that a manufacturer is liable in negligence for failure to warn the purchasers or users of its product about dangers associated with intended use. In Clement v Crosby & Co, 148 Mich 293; 111 NW 745 (1907), the plaintiff was burned when stove polish she was using to polish a gas range ignited. The stove polish container was not labeled with a warning that the polish was inflammable. The action was allowed. In Gerkin v Brown & Schler Co, 177 Mich 45; 143 NW 48 (1913), the plaintiff alleged that he was poisoned by a dye applied to the muskrat fur collar of his coat. The fact that the poisoning was rare was held insufficient reason to deny the action. Also, a manufacturer has been required to warn of dangers associated with foreseeable misuse. Gronlie v Positive Safety Mfg Co, 50 Mich App 109; 212 NW2d 756 (1973); Byrnes v Economic Machinery Co, 41 Mich App 192; 200 NW2d 104 (1972).
Where plans and directions are supplied, we have held that failure to substantially follow them precludes recovery from the engineer or the architect for the collapse of a building, Bayne v Everham, 197 Mich 181; 163 NW 1002 (1917), and from the manufacturer for the collapse of a derrick, Sanders v Kalamazoo Tank & Silo Co, 205 Mich 339; 171 NW 523 (1919).
In sum, our prior decisions support a policy that a manufacturer’s standard of care includes the dissemination of such information, whether styled as warnings or instructions, as is appropriate for the safe use of its product. If warnings or instructions are required, the information provided must be adequate, accurate and effective.
Although this policy has found expression in a variety of contexts, most often involving warnings, it is not limited to warnings. It is broad enough to encompass instructions for use. To conclude otherwise would be to restrict the sweep of the law of negligence in this state.
This policy has limits. It has been applied in instances where the product itself had dangerous propensities. Out of recognition that the manufacturer’s interests are also entitled to protection, this policy has not been applied in situations involving known or obvious product-connected dangers where the product itself is not defective or dangerous. Fisher v Johnson Milk Co, Inc, 383 Mich 158; 174 NW2d 752 (1970) (wire milk bottle carrier). See, also, Anno: Products liability — duty to warn, 76 ALR2d 9, 28-37, and cases cited therein.
In the instant case, Spider manufactured the scaffold which happened to be involved in a construction site accident. The scaffold was not found by the jury to be defective. The most that can be said of the accident is that the load-bearing capacity of the rigging system designed by plaintiff Howard Antcliff and his co-worker was insufficient to support the powered scaffold. This led to the system’s collapse. We are unable to conclude that the scaffold’s weight was a dangerous propensity which necessitates vindication of the policy. In addition, plaintiff Howard Antcliff and his coworker were both journeyman painters. In view of their knowledge and experience as riggers, we feel constrained to charge them with full appreciation of the danger of inadequately supporting the scaffold on which they worked. As a result, the circumstances here (a non-defective product lacking in dangerous propensities and a known or obvious product-connected danger) do not support application of the policy which would require Spider to provide instructions for the safe rigging of its product.
Moreover, the contrary conclusion would lead to demonstrably unfair and unintended results. There are countless skilled operations such as the rigging of scaffolding, which involve otherwise non-dangerous products in potentially dangerous situations. A manufacturer of such a product should be able to presume mastery of the basic operation. The more so when, as here, the manufacturer affirmatively and successfully limits the market of its product to professionals. In such a case, the manufacturer should not be burdened with the often difficult task of providing instructions on how to properly perform the basic operation.
IV
It is well-settled law that the question of duty is to be resolved by the court rather than the jury. The trial court in this case found that defendant manufacturer owed plaintiffs no legal duty to give instructions for the safe rigging of its powered scaffold. We have reviewed that determination — as a question of law — and agree.
We hold that Spider’s standard of care, on these facts, does not include a requirement that it instruct on or give directions for the safe rigging of its powered scaffold. As a result, we further hold that Spider was under no duty to plaintiffs to instruct on or give directions for the safe rigging of its product.
In all other respects, the Court of Appeals decision is affirmed.
Kavanagh, Levin, Coleman, and Ryan, JJ., concurred with Fitzgerald, C.J.
Williams, J., concurred in the result.
The late Justice Blair Moody, Jr., took no part in the decision of this case.
The general contractor filed a third-party complaint against Austin’s Painters on August 27, 1973. The third-party claim was dismissed with prejudice on May 10, 1978.
The jury was instructed on several negligence and breach of implied warranty claims. As to the negligence claims, the trial court instructed the jury that Spider could be found negligent if it knew, or should have known, of the following practices at the site and failed to warn against them: 1) use of construction materials as outriggers; 2) inadequate counterweighting of the wooden outriggers; 3) failure to use tie-backs as a fail-safe system so that the scaffold would be supported if an outrigger failed; 4) testing the load-carrying capacity of a scaffold by jumping up and down on it. The trial court also instructed that Spider could be found negligent for failure to design its scaffold in light of existing safety codes and regulations and for failure to advise the purchasers of the scaffold that the level-wind mechanism did not, in fact, always wind evenly (with a resultant sudden dropping and jerking motion). As to the breach of implied warranty claims, the court instructed on plaintiffs’ theories that the product was defective in that: 1) the level-wind mechanism did not always function as claimed; 2) the product was not accompanied by a warning about the danger in using improper and inadequate overhead supports; and 3) the product was not accompanied by a warning that the sudden dropping and jerking motions attributable to the level-wind mechanism’s malfunctioning required use of a metal overhead support system. See Antcliff v State Employees Credit Union, 95 Mich App 224, 235-236, fn 7; 290 NW2d 420 (1980).
It is undisputed that Spider did not provide any general instructions with its scaffold on how to properly rig a scaffold. As will be seen, its local agent, Richard Crudele, did provide instruction on how to operate the scaffold as well as how to rig it from the ceiling of an auditorium. Defendant concedes that a manufacturer has a duty to instruct on or give directions for the proper use of products it supplies, but argues that this duty does not apply to products not supplied. In addition, it avers there was no evidence elicited at trial from which it could be concluded that Spider had voluntarily assumed an obligation of continual instruction in how to rig its scaffolds. Finally, defendant notes that it did not have any supervisory responsibility or control over practices used at the construction site in the instant case and was not consulted on how to rig the scaffold which plunged to the ground.
For an indication of the difficulty which may be encountered in trying to divine whether a decision was concerned with "warnings” or "instructions for use”, see Ebers v General Chemical Co, 310 Mich 261; 17 NW2d 176 (1945).
Note that Prosser cautions: "The distinction [between duty and standard of care] is one of convenience only, and it must be remembered that the two are correlative, and one cannot exist without the other.” Prosser, supra, p 324.
Analytically, the standard of care gives practical content to considerations of duty. If the interest of a plaintiff invaded by a defendant’s conduct is not an interest entitled to legal protection, the conclusion that the defendant owes no duty to the plaintiff as to the objected-to conduct necessarily incorporates the conclusion that the defendant’s standard of care does not include avoidance of the objected-to conduct. Conversely, if the conclusion is that the defendant’s standard of care does not include certain conduct, perforce the defendant is under no duty as to that conduct.
Since the conduct of a person of reasonable prudence is always dependent upon proof of the circumstances as they existed at the time of the defendant’s conduct, a standard of care issue is to this extent a matter for the trier of fact. That is, the trier of fact would determine if the defendant acted or failed to act as would a person of reasonable prudence given the circumstances proved.
There was testimony at trial that a journeyman painter is one who has served as an apprentice painter for at least a year and also has received formal training. On-the-job training for an apprentice consists of working with a journeyman painter whose responsibilities include teaching safety procedures as well as the trade. Formal training is also designed to teach the trade and safety procedures. Such schooling includes how to safely rig or suspend scaffolding.
There is limited authority in other jurisdictions for the view that, under certain circumstances, a manufacturer’s standard of care may include the necessity to provide instructions on the proper use of its product separate and apart from any warnings. Typically, this has occurred when the failure to give instructions for the proper use of a product makes the product unreasonably dangerous to use. See 72 CJS Supp, Products Liability, § 29, p 45, and cases cited therein. See, also, 1 Frumer and Friedman, Products Liability, § 8.05, pp 186.4-186.23.
The scaffold was stationary at the time its support system failed.
We note again that this case involves a situation where the manufacturer did not provide any general instructions on how to rig its scaffold. Spider’s local agent, however, did provide instructions on a specific rigging application at the request of Austin’s Painters. Whether the claim, here, is failure of the manufacturer to instruct or failure to adequately instruct, we perceive no principled reason, on these facts, for distinguishing between the situations. Plaintiffs do not assert, and the record does not support, an argument that defendant intentionally and deliberately sought to evade liability by not providing instructions on use. Also, this is not a situation involving an unavoidably unsafe product such as a drug, an inherently dangerous product such as an explosive, or even a dangerous product such as a pesticide or an aromatic solvent. Also, we do not address here a state-of-the-art change in how to perform a basic operation. The powered scaffold manufactured and sold by Spider was rigged comparably to the way a manually powered scaffold would be suspended from the same structure. | [
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Coleman, J.
The Attorney General brings this action in quo warranto and under the Michigan Consumer Protection Act against Diamond Mortgage Company and its officers and directors. The case was dismissed in the trial court, and the Court of Appeals affirmed. Several questions need to be answered. First, under the doctrines of either the exhaustion of administrative remedies or primary jurisdiction, should this action against a licensed real estate broker initially have been brought before the Department of Licensing and Regulation? Second, are the defendants exempt from the Michigan Consumer Protection Act, MCL 445.901 et seq.; MSA 19.418(1) et seq., because of their license to engage in the real estate brokerage business? Third, is § 5(1) of the Michigan Consumer Protection Act, MCL 445.905; MSA 19.418(5), a jurisdictional, as opposed to a venue, provision? Fourth, is an action in quo warranto inappropriate against a corporation allegedly involved in pervasive illegality under the usury and consumer protection laws? We answer all four questions in the negative and reverse the judgments of the lower courts.
I
The Attorney General instituted this action in quo warranto and under the Michigan Consumer Protection Act, MCL 445.901 et seq.; MSA 19.418(1) et seq., on June 13, 1979. Defendant Diamond Mortgage Company is a Michigan corporation, and defendants Sheldon Greenberg and Barton Greenberg are its officers and directors.
The Attorney General alleged, inter alia, that Diamond advertised and offered loans to homeowners. Diamond represented that the interest would be 11% per annum. At closing, a promissory note and mortgage were executed on which Diamond was the mortgagee. Also at the closing, Diamond allegedly imposed a brokerage or prepaid finance fee, the fee was taken from the loan, and the loan was increased to cover the amount of the fee. The entire amount was then owed at 11% interest per annum. This brokerage or finance fee, the Attorney General contends, is interest and is usurious, because Diamond allegedly is the lender. The Attorney General also alleged that the various documents used to complete the mortgage loan transaction were confusing and inconsistent concerning such matters as whether Diamond was acting as lender or broker, what amount was to be paid to the homeowner, what amount was to be financed, and what were the amounts of the annual percentage rate and the finance charge. The Attorney General contends that Diamond’s methods of doing business violated the Michigan Consumer Protection Act and the usury statutes. Diamond allegedly has abused its corporate charter and has engaged in a gross misuse of the corporate privileges given to it by the State of Michigan. As remedies, the Attorney General seeks the revocation of Diamond’s corporate privileges, relief for injured homeowners through the reformation of the mortgage loan transactions, and the imposition of penalties.
The defendants raised several issues in their answer. They contended, inter alia, that the circuit court lacked jurisdiction because the Attorney General failed to exhaust his administrative remedies. The defendants asserted that he first should have sought the revocation of Diamond’s real estate broker’s license in a proceeding before the Department of Licensing and Regulation. See MCL 451.213; MSA 19.803. They also asserted that Diamond’s activities as a licensed real estate broker were exempt from the proscriptions of the Michigan Consumer Protection Act. See MCL 445.904; MSA 19.418(4). Defendants further alleged that the Michigan Consumer Protection Act violates the title-object clause of the Michigan Constitution of 1963. Const 1963, art 4, § 24. Addi tionally, they contended that the Ingham Circuit Court lacked jurisdiction over plaintiffs claim under the Michigan Consumer Protection Act because the defendants were not established or conducting business in Ingham County. See MCL 445.905(1); MSA 19.418(5)(1).
The circuit judge dismissed the action, stating several reasons. First, he held that even if the defendants could be prosecuted for usury "they would not be guilty per se of ultra vires acts that would justify a quo warranto action”. Second, he cited Attorney General v Shaw, 327 Mich 648; 42 NW2d 774 (1950), for the proposition that quo warranto would not be appropriate when there existed an adequate statutory remedy. He concluded that in this case the real estate brokers licensing act offered an adequate remedy. Third, he agreed with defendants that because Diamond held a real estate broker’s license it was exempt from the Michigan Consumer Protection Act. Finally, he stated that even if Diamond were subject to the Michigan Consumer Protection Act, under the act there was no jurisdiction in the Ingham Circuit Court because the defendants were neither established nor conducting business in Ingham County.
The Court of Appeals affirmed on the ground that plaintiff had failed to exhaust his administrative remedies. Attorney General v Diamond Mortgage Corp, 102 Mich App 322; 301 NW2d 523 (1980) . It concluded that although the Department of Licensing and Regulation could not provide all of the relief requested, plaintiff was yet required to exhaust the available administrative remedies. The Court stated:
"If the present lawsuit were allowed in circuit court, coming without any administrative proceedings, the cohesive administrative scheme of the Department of Licensing and Regulation and [the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq.] specifically set forth by the Legislature could be totally avoided by claiming, in addition to remedies available through the administrative process, a remedy outside of the administrative scheme.” 102 Mich App 326.
The Court noted that plaintiff had not shown that any prejudice would result through proceeding first through the administrative process.
This Court granted the application of the Attorney General for leave to appeal. 411 Mich 1003 (1981) .
II
A
The reasoning of the Court of Appeals in holding that the doctrine of the exhaustion of administrative remedies applied was premised upon a misstatement of the relief sought by the Attorney General. The Court stated that among the remedies plaintiff sought was "a court order revoking the defendants’ real estate broker’s license”. 102 Mich App 324. Such relief, however, was never requested by the Attorney General. The Attorney General sought the dissolution of the corporation, the reformation of prior mortgages, and the imposition of the penalties for which provision is made in the Michigan Consumer Protection Act and the quo warranto statute, MCL 600.4521; MSA 27A.4521. Contrary to the Court of Appeals assertion, none of the relief which the plaintiff sought was available in the Department of Licensing and Regulation.
There is, therefore, no basis for requiring that administrative remedies in the Department of Licensing and Regulation be exhausted. There were no administrative remedies available in that agency. Although divesting Diamond of its corporate privileges and revoking Diamond’s license may end in the same result, Le., the cessation of corporate activities, there is no proposition of law that would require the Attorney General to seek the revocation of a corporation’s license to act as a real estate broker prior to seeking the dissolution of the corporation. The real estate brokers licensing act, as it was in effect at the time this case arose, clearly provided that a license granted pursuant to it was not intended to shield the licensee from responsibilities under the civil and criminal laws:
"This act shall not be construed to relieve a person from civil liability or criminal prosecution under the general laws of this state.” MCL 451.213; MSA 19.803.
Because the Attorney General did not seek to revoke Diamond’s real estate broker’s license, there was no need for him to exhaust the administrative remedies available for that purpose. Defendants conceded this at oral argument, but argued that nevertheless the Court of Appeals decision should be affirmed under the doctrine of primary jurisdiction.
B
The doctrine of primary jurisdiction originated in the decision of the Supreme Court of the United States in Texas & P R Co v Abilene Cotton Oil Co, 204 US 426; 27 S Ct 350; 51 L Ed 553 (1907). In that case, a shipper sued a carrier alleging that the carrier had charged an unreasonable rate. The question was whether a state court could properly rule on the matter absent prior review of the rate by the Interstate Commerce Commission. The commission had been established by an act, the purpose of which was to assure that rates charged by carriers were uniform and reasonable. Carriers would file their rates with the commission, and the reasonableness of those rates could be challenged in proceedings before the commission. Although the act creating the commission stated that it did not abolish the common-law right to challenge such rates in court, the Supreme Court concluded that preliminary resort must be to the Interstate Commerce Commission if the purpose of obtaining uniform rates were to be effectuated.
The Supreme Court has continued to apply the doctrine, and articulated its rationale as follows in Far East Conference v United States, 342 US 570, 574-575; 72 S Ct 492; 96 L Ed 576 (1952):
"[I]n cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over. This is so even though the facts after they have been appraised by specialized competence serve as a premise for legal consequences to be judicially defined. Uniformity and consistency in the regulation of business entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure.”
Primary jurisdiction has been distinguished from the exhaustion of administrative remedies by the fact that exhaustion applies when the claim can originally be brought only before an administrative agency.
" 'Primary jurisdiction’, on the other hand, applies where a claim is originally cognizable in the courts and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body”. United States v Western P R Co, 352 US 59, 63-64; 77 S Ct 161; 1 L Ed 2d 126 (1956).
The defendants argue that there are certain factual disputes presented in this case that require initial determination in the Department of Licensing and Regulation. These disputes are whether the defendants made misrepresentations likely to influence, persuade, or induce, and whether defendants’ activities constitute the actions of a real estate broker or the actions of a lender. Defendants contend that prior resort to the Department of Licensing and Regulation is necessary both to assure uniformity in the determination of these questions and to take advantage of the special expertise of the agency. Defendants assert that many of the acts which plaintiff has alleged would have been grounds for the suspension or revocation of their license by the Department of Licensing and Regulation. MCL 451.213; MSA 19.803.
Although the primary jurisdiction doctrine has been applied to various industries and activities, the real estate brokerage business is not a heavily regulated industry of the type to which the doctrine has typically been held to apply. In United States v Radio Corp of America, 358 US 334, 348, 350; 79 S Ct 457; 3 L Ed 2d 354 (1959), the issue was whether approval by the Federal Communications Commission of the defendants’ acquisition of a television station had the effect of collateral estoppel or res judicata, because of the doctrine of primary jurisdiction, so as to preclude a later challenge to the acquisition on antitrust grounds. The Court concluded that "[w]hile the television industry is also a regulated industry, it is regulated in a very different way” from the common carriers to which the doctrine had originally been applied. "[TJhere being no pervasive regulatory scheme, and no rate structures to throw out of balance, sporadic action by federal courts can work no mischief. The justification for primary jurisdiction accordingly disappears.”
Similarly, in this case, there is no pervasive regulatory scheme that might be thrown out of balance by initial review in the courts. The Department of Licensing and Regulation, under MCL 451.201 et seq.; MSA 19.791 et seq., was given responsibility to determine, under the statutory guidelines, to whom a license should be granted and whose license should be taken or suspended. The agency was not granted broad powers of regu lation over the entire subject matter of a licensee’s business. Thus, without interfering with the responsibilities of the Department of Licensing and Regulation, the courts of this state can determine what the obligations of real estate brokers are under our consumer protection, usury, and corporation laws. Uniformity of action between the agency and the courts is simply not a concern because there is no need for the responsibilities of a licensee under the licensing statutes to be the same as its responsibilities under the usury or consumer protection laws.
Although defendants argue that the expertise of the agency also warrants application of the primary jurisdiction doctrine, the questions that they argue should be initially addressed by that agency are not factually complex. The questions whether the defendants made misrepresentations of significance under the Michigan Consumer Protection Act or acted as a lender for purposes of our usury laws are ones that can be competently determined in the courts that enforce those laws.
The rationales underlying the primary jurisdiction doctrine do not support its application in the present case, and we therefore hold that there was no need for prior resort to the Department of Licensing and Regulation.
Ill
One of the reasons enunciated by the trial court for dismissing plaintiffs complaint was that defendants were exempt from plaintiffs claim under the Michigan Consumer Protection Act. The trial court relied on § 4(1) of that act, which provides:
"This act shall not apply to:
(a) A transaction or conduct specifically authorized under laws administered by a regulatory board or officer acting under statutory authority of this state or the United States.” MCL 445.904; MSA 19.418(4).
The trial judge stated that
"[s]ince Diamond is under the auspices of the Michigan Department of Licensing and Regulation, as authorized by the Michigan real estate brokers licensing act, it is apparent that Diamond is not subject to sanctions under the [Michigan Consumer Protection Act].”
Defendants contend that this ruling was correct. They assert that because Diamond had a real estate broker’s license, Diamond was "entitled to perform all the acts of a real estate broker contemplated by [the real estate brokers licensing act]”. MCL 451.211(b); MSA 19.801. One of the activities contemplated by the act was that licensees would negotiate the "mortgage of real estate”. MCL 451.202; MSA 19.792.
The plaintiff, however, argues that § 4(1) of the Michigan Consumer Protection Act exempts only "[a] transaction or conduct speciñcally authorized”. He contends that a license to engage in an activity is not a basis for concluding that one is "specifically authorized” to employ deceptive practices in that activity. He states:
"If every person or business which engages in an activity authorized by some statute or regulation were exempt from the Michigan Consumer Protection Act, pursuant to § 4(1), then the Michigan Consumer Protection Act, would be a cruel hoax on the many legislators * * * and others who sought to give Michigan consumers protection in the marketplace. A consumer could sue an unlicensed optician for deception, but not a licensed optometrist. A consumer could sue a grocery store, but not a licensed car dealer or auto repair facility. A licensed hearing-aid dealer would be exempt from suit, but not the corner baker.”
Defendants respond that to accept plaintiffs construction of § 4(1) would be to render the exemption meaningless. They assert:
"Obviously, there is no statute which specifically authorizes misrepresentations or false promises. Yet under plaintiffs rationale, it is only where a statute which is administered by a regulatory agency specifically authorizes unscrupulous conduct that the statutory exemption would apply.”
Defendants argue that such a result is absurd.
We agree with the plaintiff that Diamond’s real estate broker’s license does not exempt it from the Michigan Consumer Protection Act. While the license generally authorizes Diamond to engage in the activities of a real estate broker, it does not specifically authorize the conduct that plaintiff alleges is violative of the Michigan Consumer Protection Act, nor transactions that result from that conduct. In so concluding, we disagree that the exemption of § 4(1) becomes meaningless. While defendants are correct in stating that no statute or regulatory agency specifically authorizes misrepresentations or false promises, the exemption will nevertheless apply where a party seeks to attach such labels to "[a] transaction or conduct specifically authorized under laws administered by a regulatory board or officer acting under statutory authority of this state or the United States”. For this case, we need only decide that a real estate broker’s license is not specific authority for all the conduct and transactions of the licensee’s business.
IV
The trial court also concluded that it lacked jurisdiction under the Michigan Consumer Protection Act. This conclusion was based on § 5(1) of the act, which relates to actions brought by the Attorney General and provides in pertinent part:
"The action may be brought in the circuit court of the county where the defendant is established or conducts business or, if the defendant is not established in this state, in the circuit court of Ingham county.” MCL 445.905(1); MSA 19.418(5)(1).
The court held that because Diamond is established in Oakland County, the Ingham Circuit Court would lack jurisdiction of plaintiffs claim under the Michigan Consumer Protection Act.
Plaintiff contends, however, that the quoted provision is not jurisdictional, but at most relates to venue. If so, then venue could lie in Ingham County because the claim under the Michigan Consumer Protection Act was joined with a quo warranto claim, which properly was brought in Ingham County. MCL 600.1631; MSA 27A.1631. "Where causes of action are joined, whether properly or not, the venue may be laid in any county in which either cause of action, if sued upon separately, could have been commenced and tried”. MCL 600.1641; MSA 27A.1641. Defendants agree that if MCL 445.905; MSA 19.418(5) is a venue provision, this action was properly commenced in the Ingham Circuit Court._
Neither the statutory language nor its context indicate that the Legislature was addressing jurisdiction, as opposed to venue, when it provided that actions under the Michigan Consumer Protection Act "may be brought in the circuit court of the county where defendant is established or conducts business”. MCL 445.905; MSA 19.418(5). Significantly absent from the statute is any mention of jurisdiction or of the "power to review”. See Brown v LTV Aerospace Corp, 394 Mich 702; 232 NW2d 656 (1975); Peplinski v Employment Security Comm, 359 Mich 665; 103 NW2d 454 (1960). Given our constitutional provision that "[t]he circuit court shall have original jurisdiction in all matters not prohibited by law”, Const 1963, art 6, § 13, we must presume that the circuit courts of our state have jurisdiction, unless there is some basis for concluding that the legislative intent was otherwise. Because the statutory language of MCL 445.905(1); MSA 19.418(5)(1) can easily be read to relate to venue, and there is no ground to believe jurisdiction was being addressed, the statutory language must be construed to relate to venue.
Therefore, plaintiffs claim under the Michigan Consumer Protection Act, being joined with the action in quo warranto was properly brought in the Ingham Circuit Court.
V
The circuit judge also concluded that the plaintiffs action in quo warranto would not lie. He stated:
"Quo warranto actions are traditionally brought against licensees for an ouster of their franchise for acting outside the scope of their authority. Diamond is a corporation authorized to 'engage in any activity within the purposes for which corporations may be organized under the Business Corporation Act of Michigan’. This broad statement of purposes would allow Diamond great latitude in the conduct of its business. Theoretically it could loan money for mortgages if it met certain criteria. Even though Diamond could be prosecuted for usury, it would not be guilty per se of ultra vires acts that would justify a quo warranto action.
"Another ground for denying a quo warranto procedure can be found in Attorney General v Shaw, 327 Mich 648; 42 NW2d 774 (1950). In that case, the Supreme Court denied quo warranto when an applicable statute furnished a remedy. Here the real estate brokers licensing act offers adequate relief for violations such as those alleged; therefore quo warranto does not lie.”
We do not agree that the holding of Attorney General v Shaw is applicable to this case. In Shaw, plaintiff claimed that "quo warranto lies to test the validity of defendant’s license to engage in the used-car business, urging that he should be ousted from the privileges afforded by such license because he violated § 14 of the motor vehicle title law”. 327 Mich 649. This Court concluded that quo warranto would not lie because
"[sjection 14 of the motor vehicle title act itself makes no provision for such relief, but, on the contrary, provides that violations of the requirements of the section shall constitute misdemeanors, punishable as such, and it authorizes revocation of licenses thereunder by the secretary of State for good cause shown”. 327 Mich 650. (Emphasis added.)
Hence, in Shaw, the Attorney General sought to use an action in quo warranto to oust a licensed car dealer from his privileges under the license on the basis of the violation of a statute that had an express provision authorizing revocation of the license by the Secretary of State. The present case is distinguishable because the Attorney General is not seeking the revocation of Diamond’s real estate broker’s license, and neither the Michigan Consumer Protection Act nor the usury statutes specify license revocation as a remedy. Therefore, Shaw does not support the conclusion that because the Attorney General could have proceeded under the real estate brokers licensing act, he was precluded from bringing an action in quo warranto in which he would seek to oust the corporation from its corporate privileges.
This case is more similar to the companion case of Shaw, Attorney General v Contract Purchase Corp, 327 Mich 636; 42 NW2d 768 (1950), than it is to Shaw. In Contract Purchase Corp, the Attorney General brought an action in quo warranto, seeking to oust the corporation from its corporate privileges. The action was premised on alleged violations of the usury laws, the small loan act, and the Insurance Code. The Court stated:
"Quo warranto is an appropriate proceeding to remedy the usurpation of corporate franchises and the abuse, misuse or nonuse of franchises or powers by an existing corporation. * * * A finding that the violations charged are established by the evidence may result in rendition of a judgment ousting and altogether excluding the corporation from its corporate rights, privileges and franchise; or in lieu thereof, this Court may impose a fine not exceeding $10,000 * * *; or the ouster, instead of being general, may be from doing particular acts. * * * We must determine whether the testimony establishes offenses against the laws and policy of this State.” 327 Mich 642. (Citations omitted; emphasis added.)
The Court concluded that the evidence did not show that the usury laws, the small loan act, or the Insurance Code had been violated. However, the Court did accept the proposition that the violation of such laws might warrant relief in an action in quo warranto.
In this case, the plaintiff has alleged that Diamond as a regular practice, violated the usury and consumer protection laws of this state. Because the Attorney General seeks to oust Diamond from its corporate privileges on the basis of this illegal activity, the case is similar to that presented in Contract Purchase Corp. As in Contract Purchase Corp, we find that a factual inquiry is appropriate concerning the extent to which Diamond has violated the laws and policies of this state. We conclude that the plaintiff should be allowed the opportunity to prove his allegations. If the evidence presented by the plaintiff does not justify dissolution of the corporation, other more limited remedies are available. MCL 600.4521; MSA 27A.4521.
VI
Defendants challenge the constitutionality of the Michigan Consumer Protection Act on the ground that it violates the title-object provision of the 1963 Michigan Constitution, art 4, § 24. Because this case is to be remanded to the circuit court, there is no need for this Court to address the issue at this stage in these proceedings.
The judgments of the Court of Appeals and the circuit court are reversed, and we remand this case to the Ingham Circuit Court for proceedings consistent with this opinion.
Fitzgerald, C.J., and Kavanagh, Williams, Levin, and Ryan, JJ., concurred with Coleman, J.
The late Justice Blair Moody, Jr., took no part in the decision of this case.
Diamond denies this allegation and contends that it is in the mortgage brokerage business and merely obtains mortgages for homeowners.
The real estate brokers licensing act, 1919 PA 306, as amended, MCL 451.201 et seq.; MSA 19.791 et seq., was repealed and replaced by the Occupational Code, 1980 PA 299; MCL 339.101 et seq.; MSA 18.425(101) et seq., subsequent to the time the present action was commenced, June Í3, 1979, and dismissed, June 20, 1979, in the trial court.
MCL 451.213; MSA 19.803 provided in part:
"The department of licensing and regulation may upon its own motion, and shall upon the verified complaint in writing of a person, investigate the actions of an applicant for a real estate salesperson license, a real estate broker or real estate salesperson, or a person who shall assume to act in either capacity within this state, and may deny, suspend, or revoke a license issued under this act and may reprimand or place on probation a licensee if the applicant or licensee, in performing or attempting to perform an act mentioned in this act is considered to be guilty of:
"(a) Making a substantial misrepresentation.
"(b) Making a false promise of a character likely to influence, persuade, or induce.
"(c) Pursuing a continued and flagrant course of misrepresentation or the making of false promises through agents or salespersons or advertising or otherwise.”
MCL 445.904; MSA 19.418(4) provides in part:
"(1) This act shall not apply to:
"(a) A transaction or conduct specifically authorized under laws administered by a regulatory board or officer acting under statutory authority of this state or the United States.
"(3) The burden of proving an exemption from this act is upon the person claiming the exemption.”
MCL 445.905(1); MSA 19.418(5)(1) provides:
"When the attorney general has probable cause to believe that a person has engaged, is engaging, or is about to engage in a method, act, or practice which is unlawful pursuant to section 3, and upon notice given in accordance with this section, the attorney general may bring an action in accordance with principles of equity to restrain the defendant by temporary or permanent injunction from engaging in the method, act, or practice. The action may be brought in the circuit court of the county where the defendant is established or conducts business or, if the defendant is not established in this state, in the circuit court of Ingham county. The court may award costs to the prevailing party. For persistent and knowing violation of section 3 the court may assess the defendant a civil penalty of not more than $25,000.00.” (Emphasis added.)
See Anno: The Doctrine of Primary Administrative Jurisdiction as Deñned and Applied by the Supreme Court, 38 L Ed 2d 796.
See 2 Am Jur 2d, Administrative Law, §§ 791-792; White Lake Improvement Ass’n v City of Whitehall, 22 Mich App 262; 177 NW2d 473 (1970).
Since repealed. See MCL 339.101 et seq.; MSA 18.425(101) et seq.
Since repealed. See MCL 339.101 et seq.; MSA 18.425(101) et seq.
MCL 600.1631; MSA 27A.1631 provides in part:
"The county in which the seat of state government is located is a proper county in which to commence and try the following actions:
“(a) when the action is commenced by the attorney general in the name of the state or of the people of the state for the use and benefit thereof’.
MCL 600.4521; MSA 27A.4521 provides:
"If a corporation has, by any misuser, nonuser, or surrender, forfeited its corporate rights, privileges and franchises, the judgment in an action for quo warranto shall oust and exclude such corporation from such corporate rights, privileges and franchises, and may dissolve the corporation. In addition to such judgment or in lieu thereof (except in case of such surrender), the court may impose a fine not exceeding $10,000.00 upon the corporation. The fine will not prevent further prosecution for any continuance or repetition of the conduct complained of.” | [
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Fitzgerald, C.J.
We are asked to determine whether a signed statement procured by private security guards, one of whom was an off-duty deputy sheriff, may be admitted into evidence against a defendant even though no Miranda warnings were given. We hold that no such warnings were necessary in this case and affirm the decision of the Kent Circuit Court._
Defendant, Frederick Impens, was charged with disorderly conduct on the basis of a shoplifting incident at a Grand Rapids Meijer store. While walking through the store, security detective Rick Cain, an off-duty deputy sheriff from neighboring Allegan County, observed defendant and his two companions, Allen Raush and David Ronkema, in the musical tape aisle. Believing their behavior to be suspicious, Cain proceeded to the milk cooler, a vantage point from which activity in the tape aisle could be viewed. Charles Booth, another store detective, was already there and had observed one of the men concealing a tape on his person. Booth testified that he observed Allen Raush picking up tapes, removing the packaging, and concealing the tapes inside his pants. Frederick Impens and David Ronkema were observed looking around, walking up and down the tape aisle, selecting tapes, and handing them to Mr. Raush.
Cain and Booth followed the three men after they left the tape aisle and proceeded to different areas in the store. The security guards approached defendant and his companions and asked them to come to the security office. Some identification was shown, though Cain could not recall whether he showed his Meijer identification or his badge.
The officers were joined in the office by a third security guard, and the three men were searched. The tape cartridges and a watchband were found in Raush’s possession. The security guards proceeded to talk to the three, eliciting the necessary information to complete Meijer’s form entitled "Loss Prevention Department Voluntary Statement”. The statement was read to the defendant, and he signed it. There was no indication that defendant would not be released if the statement were not signed. The Grand Rapids police were called. The police arrived, issued appearance tickets to Impens, Raush and Ronkema, and the three men left the security office. Charles Booth testified that they were in the security office for approximately 15 minutes.
Defendant was convicted of the charged offense by a district court jury. The conviction was affirmed by the Kent Circuit Court. The Court of Appeals denied the defendant’s application for leave to appeal. This Court granted leave to appeal. 411 Mich 1035 (1981).
Prior to trial, defendant moved to suppress the admission of the signed statement, alleging that it was taken in violation of his constitutional rights. It is conceded that defendant was not advised of his rights before he gave the statement. The motion was denied. Defendant contends in this Court that the trial court erred in concluding that the inculpatory statements and confession made by defendant were voluntary where obtained without prior Miranda warnings in a custodial environment by private security officers, one of whom was a moonlighting deputy sheriff from a neighboring county, and that reversal is required.
In Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966), the United States Supreme Court "established a conclusive presumption that all confessions or admissions made during a period of custodial interrogation are compelled in violation of the Fifth Amendment’s privilege against self-incrimination”. 2 Ringel, Searches & Seizures, Arrests & Confessions (2d ed), § 26.1, pp 26-1 to 26-2. This presumption can only be overcome by demonstrating that the defendant has received specified warnings of his rights and has been informed that these rights may be waived. Any such waiver must be made voluntarily, knowingly and intelligently. Statements, whether exculpatory or inculpatory, secured from a defendant in the absence of these procedural safeguards may not be used by the prosecution in any proceedings against the defendant. This exclusionary rule applies to federal proceedings and, by virtue of the Fourteenth Amendment, to state proceedings as well.
Constitutional protections apply to governmental action only; thus, it generally has been held that "a person not a police officer, or not acting in concert with or at the request of police authority, is not required to extend constitutional warnings prior to the eliciting of an incriminating statement”. People v Omell, 15 Mich App 154, 157; 166 NW2d 279 (1968). In Burdeau v McDowell, 256 US 465, 475; 41 S Ct 574; 65 L Ed 1048 (1921), the Supreme Court explained that the origin and history of the Fourth Amendment "clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies”. The Court held that evidence illegally seized by a private individual could be used against an accused in a grand jury investigation. The Burdeau Court recognized that such a rule of restraint on government action was reasonable in light of the traditional means available to private individuals to redress their grievances. This concept has been followed by our Court of Appeals in People v Holloway, 82 Mich App 629; 267 NW2d 454 (1978). In holding that the Fourth Amendment’s prohibition against unreasonable searches and seizures does not extend to activities by private security guards, the Court wrote:
"[A]n individual has the right to redress any wrongs which may have been committed by private citizens, be they security guards or not. They can bring civil actions or file criminal complaints against the alleged offenders. It is because the cloak of sovereign immunity is wrapped around law enforcement officials that the Fourth-Amendment is applied to their actions (though today a somewhat ragged cloak).” 82 Mich App 633.
Thus, the exclusionary rule only applies if governmental involvement can be shown. Statements made to private individuals need not be preceded by Miranda warnings. United States v Antonelli, 434 F2d 335 (CA 2, 1970); United States v Bolden, 461 F2d 998 (CA 8, 1972); United States v Casteel, 476 F2d 152 (CA 10, 1973); Schaumberg v State, 83 Nev 372; 432 P2d 500 (1967); Anno: Custodial Interrogation — Miranda Rule, 31 ALR3d 565, 666-668.
Some decisions have held that private security guards who receive direct assistance from public police officers or who work in close connection with the police may be acting under color of state law, subject to constitutional restrictions.
In Williams v United States, 341 US 97; 71 S Ct 576; 95 L Ed 774 (1951), a private detective held a special police officer’s card and badge and was accompanied by a city police officer in obtaining evidence. The detective had been hired by a private business to discover the identity of some thieves. In this instance, the Court found sufficient direct assistance from the public police to conclude that the private detective was acting under color of state law. The Alaska Supreme Court in Tarnef v State, 512 P2d 923 (Alas, 1973), held that a private arson investigator working at the direction of the local police had to advise the defendant of his constitutional rights before eliciting a statement. The Court noted that the private investigator had promised to turn any statements over to the police, had enlisted police assistance in gaining access to the incarcerated defendant, and had regarded himself as a member of an official team. See, also, Griffin v Maryland, 378 US 130; 84 S Ct 1770; 12 L Ed 2d 754 (1964); People v Jones, 47 NY2d 528; 419 NYS2d 447; 393 NE2d 443 (1979); People v Zelinski, 24 Cal 3d 357; 155 Cal Rptr 575; 594 P2d 1000 (1979).
We do not believe that the activities of the store security guards and the city police in this case demonstrated the coordinated effort necessary to constitute state action. The Meijer security personnel were working with the view of furthering their employer’s interest. only; they were not acting as police agents. Their role may be viewed as an extension of the common-law shopkeepers’ privilege to detain for a reasonable period of time a person suspected of theft or failure to pay. See People v Raitano, 81 Ill App 3d 373; 401 NE2d 278 (1980). There was no complicity with the police department or any indication that their acts were instigated or motivated by the police.
The security guards did not exceed the scope of their power to detain and question the suspected shoplifters. The security guards were in plain clothes; the detention did not last an unreasonably long time. While there was some indication that the suspects were nervous, the acts of the security guards did not present the kind of psychological coercion and threatening environmental custody addressed by Miranda.
"But the mere asking of questions is not illegal. And guarantees against self-incrimination do not turn solely on whether interrogators are state agents. Rather, they prevent the state from using involuntary answers as evidence * * * whether obtained by government or private conduct * * *. Statements obtained without manifest physical or psychological coercion usually are deemed voluntary, though defendant never knew or waived his rights to silence and counsel.” (Citations omitted.) In re Deborah C, 30 Cal 3d 125, 132; 177 Cal Rptr 852; 635 P2d 446 (1981).
Defendant also contends that Meijer security personnel qualified as law enforcement officers because state action has granted them greater authority than that possessed by private citizens. Citing People v Eastway, 67 Mich App 464; 241 NW2d 249 (1976), and Judge Kaufman’s opinion in People v Holloway, supra, defendant believes that the licensing statutes which regulate private security guards demonstrate the requisite degree of state action to bring their activities under color of state law, subject to constitutional restraints. See MCL 338.1051 et seq.; MSA 18.185(1) et seq. We disagree. We do not believe that the mere licensing of security guards constitutes sufficient government involvement to require the giving of Miranda warnings. As stated by the Supreme Court of Ohio in State v Bolan, 27 Ohio St 2d 15, 18; 271 NE2d 839 (1971):
"In our opinion, the limited right of temporary detention extended to a merchant’s employee by R.C. 2935.041, does not place him in the category of a 'law enforcement officer’ within the purview of Miranda.
"Essentially this same conclusion has been reached almost uniformly by courts of other jurisdictions. The rationale of these cases is that the duty of giving Miranda warnings’ is limited to employees of governmental agencies whose function is to enforce law, or to those acting for such law enforcement agencies by direction of the agencies; that it does not include private citizens not directed or controlled by a law enforcement agency, even though their efforts might aid in law enforcement.”
See, also, People v Raitano, supra.
Our statute specifically states that "private security police employed for the purpose of guarding the property and employees of their employer and generally maintaining plant security for their employer” need not be licensed. MCL 338.1079; MSA 18.185(29). This language speaks to the exact function performed by Meijer’s security personnel. We do not believe that qualification for such licensing exclusion equates the actions of private security guards with those of law enforcement officers.
We also do not believe that the fact that Rick Cain was an off-duty deputy sheriff is controlling. Cain’s role in the proceedings was quite limited. He did not secure the statement and came on the scene after one of his colleagues had already observed Raush secrete one of the tapes. While Cain observed the activities of the three men and aided in their apprehension, he identified himself as a Meijer employee. The incriminating statement was obtained by one of the other security guards. The mere presence of an off-duty deputy sheriff, particularly from another jurisdiction, is not a sufficient relationship to invoke the "color of law” theory noted above. See People v Faulkner, 90 Mich App 520; 282 NW2d 377 (1979).
The Miranda rule was established "to dispel the compulsion inherent in custodial surroundings”. Miranda v Arizona, supra, 458. It is directed toward police conduct and is an attempt to prohibit lengthy interrogations in a custodial setting fraught with coercion and duress. We must conclude that in this case retail store security personnel who did not act at police instigation and functioned without police assistance and cooperation are to be regarded as private individuals. Therefore the statements made to the private security guards need not have been preceded by Miranda warnings and are admissible into evidence against defendant.
The judgment of the Kent Circuit Court is affirmed.
Williams, Coleman, and Ryan, JJ., concurred with Fitzgerald, C.J.
Kavanagh, J.
(for reversal). This appeal concerns the admissibility of a confession obtained without Miranda warnings by private security guards who took the defendant into custody, searched and questioned him in a store security office, and turned him over to the local police for prosecution. We hold as a matter of state constitutional law and court policy that the confession obtained by the private security guards should have been preceded by Miranda warnings and that in their absence it is inadmissible as evidence against the defendant. The decision of the Kent Circuit Court is reversed.
Defendant, Frederick Impens, was charged with disorderly conduct on the basis of a shoplifting incident at a Grand Rapids Meijer store. While walking through the store, security detective Rick Cain, an off-duty deputy sheriff from neighboring Allegan County, observed defendant and his two companions, Allen Raush and David Ronkema, in the musical tape aisle. Believing their behavior to be suspicious, Cain proceeded to the milk cooler, a vantage point from which activity in the tape aisle could be viewed. Charles Booth, another store detective, was already there and had observed one of the men concealing a tape on his person. Booth testified that he observed Allen Raush picking up tapes, removing the packaging, and concealing the tapes inside his pants. Frederick Impens and David Ronkema were observed looking around, walking up and down the aisle, selecting tapes and setting them down in front of Mr. Raush, who concealed them in his clothes.
Cain and Booth followed the three men after they left the tape aisle and proceeded to different areas in the store. The security guards approached defendant and his companions and asked them to come to the security office. Some identification was shown, though Cain could not recall whether he showed his Meijer identification or his Sheriffs Department badge.
The officers were joined in the office by a third security guard, and the three suspects were searched. The tape cartridges and a watchband were found in Raush’s possession. The security guards questioned the suspects, eliciting the necessary information to complete Meijer’s form entitled "Loss Prevention Department Voluntary Statement”. The statement was read to the defendant, and he signed it. There was no indication that defendant would not be released if the statement were not signed. The Grand Rapids police were called. The police arrived, and issued appearance tickets to Impens, Raush and Ronkema, and the three men left the security office. Charles Booth testified that they were in the security office for approximately 15 minutes.
Prior to trial, defendant moved to suppress the admission of the signed statement, alleging that it was taken in violation of his constitutional rights. The motion was denied. It is conceded that defendant was not advised of his rights before he gave the statement. Defendant was convicted of the charged offense by a district court jury. The conviction was affirmed by the Kent Circuit Court. The Court of Appeals denied leave to appeal. This Court granted leave to appeal. 411 Mich 1035 (1981).
Defendant contends in this Court that the trial court erred in concluding that the inculpatory statements and confession made by defendant were voluntary where obtained without prior Miranda warnings in a custodial environment by private security officers.
Article 1, § 17 of the Michigan Constitution of 1963 provides: "No person shall be compelled in any criminal case to be a witness against himself’. This safeguard against self-incrimination is at least as broad as the guarantee of the Fifth Amendment to the United States Constitution. In order to protect this right against self-incrimination, the Supreme Court of the United States in Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966), held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” The court defined custodial interrogation as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way”. The people contend that in this case it was not necessary to advise the defendant of his rights or to employ other procedural safeguards because defendant was taken into custody and questioned by private persons, and not by police officers. We disagree. We are satisfied that plaintiffs classification of private security guards as "private persons” for Miranda purposes disregards the significance of, and the role played by, private security personnel in today’s society. While we recognize that Miranda did not deal with the private security guard situation, in order to effectuate Michigan policy we must extend the Miranda concept to apply to private security guard interrogation in a custodial setting.
In 1976, the Task Force on Private Security of the National Advisory Committee on Criminal Justice Standards and Goals reported:
"'There are more than 1 million people involved in private security in the United States. The private security industry is a multibillion-dollar-a-year business that grows at a rate of 10 to 12 percent per year. In many large cities, the number of private security personnel is considerably greater than the number of police and law enforcement personnel. Of those individuals involved in private security, some are uniformed, some are not; some carry guns, some are unarmed; some guard nuclear energy installations, some guard golf courses; some are trained, some are not; some have college degrees, some are virtually uneducated.
* * *
" 'There is virtually no aspect of society that is not in one way or another affected by private security. A business may employ guards to protect persons and property from damage, injury or loss. Special security services are obviously required in places of public accommodation, such as airports, schools, and commercial complexes. The pervasive involvement of private security plays a vital role in efforts to create a safe environment in which to work and live National Advisory Committee on Criminal Justice Standards and Goals, Private Security: Report of the Task Force on Private Security 3, 10-11 (1976), as quoted in Burkoff, Not So Private Searches and the Constitution, 66 Cornell L Rev 627, 646, fn 95 (1981) (emphasis added).
Unlike "the little old lady next door who has a desire to assist in law enforcement”, private security guards are in the business of law enforcement. It is the nature of the activities of private security guards that distinguishes them from private persons. When private security guards perform functions that are traditionally governmental in nature, their action is tantamount to state action. Judge Mack of the District of Columbia Court of Appeals described a case in point:
"[A] retail store security guard, who does more than protect his employer’s property full-time, but who pursues, apprehends and detains criminals, who performs custodial searches (consensual or nonconsensual) or seizes and preserves evidence, and who interrogates and refers the criminal for prosecution is performing a police function exclusively reserved to the state.” United States v Lima, 424 A2d 113, 122 (DC App, 1980). (Judge Mack, joined by Judge Kelly, dissenting but concurring in result).
In the instant case defendant and his companions were apprehended by Meijer security guards and taken to the security office. The guards conducted a “normal search [of the suspects] up against the wall” and questioned them about the shoplifting incident. One of the guards wrote out confessional statements and requested the defendant and his companions to sign them. The Grand Rapids Police were called. A Meijer security guard, George Gruz, testified that "it’s up to the security personnel as to whether a [shoplifting suspect] is prosecuted or just warned and released.” He estimated that 20 to 40 suspects are detained for questioning each month.
We find that in the instant case the Meijer security guards were acting as substitute police officers rather than merely as protectors of private property. The confession elicited by the private security guards should have been preceded by Miranda warnings and without them is inadmissible evidence.
Two additional issues were raised for consideration: the effect of the status of one of the security guards as an off-duty deputy sheriff from a neighboring county, and the effect of the Private Security Guard Act of 1968, MCL 338.1051 et seq.; MSA 18.185(1) et seq. In the instant case these issues are not determinative. It is the nature of the activities of the security guards that requires them to provide procedural safeguards for defendant’s constitutional rights.
We agree with the observation that:
"Even where no express delegation of policing authority can be found, the exercise by private police of traditional public policing powers and the interdependency of private and public police forces dictate that private police should be subject to the same constitu tional limitations that govern public law enforcement authorities.
"This conclusion follows not only from an application of established state action doctrine, but also from highly salutary public policy goals. One study of private police activity concluded:
" '[T]o the extent that the private police system in its activities and methods provides a means by which the public police are able to bypass, evade, or subvert systems of accountability and rules of procedure, the unregulated development of a closely interacting private and public police system will inevitably create serious problems.’ ” [Scott & McPherson, The Development of the Private Sector of the Criminal Justice System, 6 Law & Soc’y Rev 267, 284-285, fn 133 (1971).] Burkoff, Not So Private Searches and the Constitution, 66 Cornell L Rev 627, 657 (1981).
Chief Justice Warren made clear in the Miranda decision that requiring law enforcement officers to apprise the accused of his right against self-incrimination before any custodial interrogation is only one method of safeguarding the accused’s constitutional rights:
"It is impossible for us to foresee the potential alternatives for protecting the privilege which might be devised by Congress or the States in the exercise of their creative rule-making capacities. Therefore we cannot say that the Constitution necessarily requires adherence to any particular solution for the inherent compulsions of the interrogation process as it is presently conducted. Our decision in no way creates a constitutional straitjacket which will handicap sound efforts at reform, nor is it intended to have this effect. We encourage Congress and the States to continue their laudable search for increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws.” 384 US 467.
The courts in several states have recognized the threat which private security forces pose to indi vidual constitutional rights and have applied constitutional limitations to their actions. We are convinced that limiting constitutional safeguards to public law enforcement authorities does not adequately protect the rights of the individual. In order to give meaningful protection to the constitutional right against self-incrimination, we hold that statements obtained by private security guards in a custodial setting must be preceded by Miranda warnings to be admissible in a subsequent criminal prosecution.
Reversed.
Levin, J., concurred with Kavanagh, J.
The late Justice Blair Moody, Jr., took no part in the decision of this case.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
State v Coburn, 165 Mont 488, 502; 530 P2d 442 (1974).
"The public function strand of state action theory states that when a private citizen performs tasks and exercises powers that are traditionally governmental in nature, he will be treated as a government actor. He will be subject to the same restrictions as the government, even in the absence of direct contact between him and a government official or agency. [Marsh v Alabama, 326 US 501; 66 S Ct 276; 90 L Ed 265 (1946).]
"The public function doctrine logically applies to private security cases. Policing is one of the most basic functions of the sovereign. When security personnel who are hired to protect business premises arrest, question and search for evidence against criminal suspects, they perform traditional public police functions.” Euller, Private Security and the Exclusionary Rule, 15 Harv Civil Rights-Civil Liberties L Rev 649, 657-658 (1980).
Testimony of a Meijer security guard, Rick Lee Cain.
According to a security guard, Charles Booth, Meijer security guards receive 40 hours of training covering such areas as search and seizure, arrest, detention, and employee theft.
In Peak v State, 342 So 2d 98 (Fla App, 1977), the District Court of Appeals of Florida, Third District, held that an involuntary confession, whether made to law enforcement officers or private persons, is inadmissible. See, also, Williams v State, 376 So 2d 846 (Fla, 1979) (Justice Adkins, joined by Justices Boyd and Sandberg, dissenting).
The California Supreme Court in People v Zelinski, 24 Cal 3d 357; 155 Cal Rptr 575; 594 P2d 1000 (1979), held that when private security personnel go beyond their employer’s private interests and fulfill a public function in bringing violators of the law to public justice, the state constitutional prohibition against unreasonable search and seizure affords protection against unlawful intrusive conduct and the exclusionary rule applies.
The Louisiana Supreme Court held in State v Hutchinson, 349 So 2d 1252 (La, 1977), that private searches and seizures are within the ambit of protection afforded by the state constitution.
In State v Brecht, 157 Mont 264, 270; 485 P2d 47 (1971), the Montana Supreme Court held that the exclusionary rule applies to private individuals as well as to law enforcement officers, because "[t]he violation of the constitutional right to privacy and against compulsory self-incrimination is as detrimental to the person to whom the protection is guaranteed in the one case as in the other.” See, also, State v Hyem, — Mont —; 630 P2d 202 (1981); State v Helfrich, 183 Mont 484; 600 P2d 816 (1979); State v Coburn, 165 Mont 488; 530 P2d 442 (1974). | [
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Per Curiam.
This case arises from an automobile accident which occurred in the pre-dawn hours of August 5, 1962, in Saginaw County, Michigan. Plaintiff was driving north on Davis Road at about 35 miles per hour. Defendant, Norman Davis, was driving south in a vehicle owned by defendants Kenneth and Louise Harrington at about 50 miles per hour. North of where the collision occurred, Davis swerved his vehicle off the road to the right allegedly in an effort to avoid hitting a dog. The Davis vehicle continued in a southerly direction partially off the road until it suddenly veered back on the road, crossed the center line and collided with the Sting vehicle, thereby injuring plaintiff.
Plaintiff, in his action, alleged negligence against defendant Davis and negligent entrustment against defendants Harrington in light of Davis’ poor driving record. Defendants answered that Davis was free from negligence in that the dog allegedly created a sudden emergency and further alleged contributory negligence on the part of plaintiff in failing to make an effort to avoid the collision.
The jury returned a verdict for plaintiff in the amount of $50,000. From a denial of motion for new trial or remittitur, defendants appeal. .
On appeal, the defendants contend that the trial court erred in refusing to give the defendants’ requested instructions as to contributory negligence.
A review of the charge as given by the trial court convinces this Court that said charge was more than adequate.
The charge as given had all the essential ingredients without the excessive verbiage sought by the defendants; and so long as the charge covers those essentials, neither party has a right to demand any particular language of exact form. Taylor v. Hannon-Colvin Post 180 of American Legion (1967), 6 Mich App 398; Cooper v. Tranter Manufacturing, Inc. (1966), 4 Mich App 71.
The defendants also contend that the trial court erred in allowing the cross-examination of defendant, Davis, with regard to traffic convictions both prior to and subsequent to the date of the accident in question here, for the purposes of impeachment. However, since the trial court properly instructed the jury that the traffic convictions were admitted solely for the purpose of testing Davis’ credibility, it was not an abuse of the trial court’s discretion to allow the defendant to be questioned as to those convictions. GCR 1963, 607; Taylor v. Walter (1968), 15 Mich App 361; Williams v. Fiedlar (1970), 22 Mich App 179.
We find no merit in the contention that the plaintiff pleaded negligent entrustment as a device to allow the admission of defendant Davis’ driving record prior to the accident, then abandoned this theory.
Affirmed. Costs to plaintiff. | [
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Williams, J.
This case concerns whether the Legislature violated constitutional due process or equal protection in providing for cost-of-living increases for no-fault insurance work loss benefits under MCL 500.3107(b); MSA 24.13107(b) but not for no-fault insurance survivors’ loss benefits under MCL 500.3108; MSA 24.13108. Plaintiff argues increases in the cost of living affect both classes alike. However, we find that the greater pecuniary benefit provided by survivors’ loss benefits supports the legislative decision to provide cost-of-living increases for work loss benefits but not for survivors’ loss benefits. Therefore, we hold that there is no lack of equal protection and that there was due process. We reverse the judgments of the Court of Appeals and the trial court.
Since we have reversed the trial court’s judgment, the plaintiff is not entitled to the interest requested or attorney fees. We remand the case to the trial court for computation of survivors’ loss benefits not inconsistent with this opinion.
I. Facts
Plaintiff’s husband was killed in a motor vehicle accident on August 7, 1975. The decedent had been insured by the defendant at the time of his death. Defendant was prepared to pay plaintiff, as survivor, the $1,000 maximum benefit authorized by MCL 500.3108; MSA 24.13108 as the earnings of plaintiff’s decedent entitled her to that amount. A dispute arose between plaintiff and defendant over the proper amount. Plaintiff filed suit in the Jackson Circuit Court, alleging that she was entitled to the maximum amount of benefits adjusted to $1,-111 per month because of increases in the cost-of-living index as computed by the insurance commissioner. At the time of the accident, § 3108 did not contain the proviso which subsequently mandated that survivors’ loss benefits reflect changes for increases in cost of living. Plaintiff also alleged that the amount of benefits to be paid under § 3108 did not have to be set off by social security and veterans’ benefits received by the plaintiff.
The trial court ruled that the no-fault set-off provision was unconstitutional, since the Court of Appeals had so held in O’Donnell v State Farm Mutual Automobile Ins Co, 70 Mich App 487; 245 NW2d 801 (1976). It also awarded the plaintiff $1,111 for each 30-day period — the amount her husband would have been entitled to receive under MCL 500.3107(b); MSA 24.13107(b) if he had survived, but was disabled because of a motor vehicle accident. Section 3107(b) has always been adjusted for increases in cost of living. In short, the trial court agreed with the plaintiff that the distinction between work loss benefits and survivors’ loss benefits violated the principle of equal protection of law and that the cost-of-living increase provided under § 3107(b) should also apply to § 3108.
In O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524; 273 NW2d 829 (1979), this Court overruled the Court of Appeals by holding that the set-off provision of the act was constitutional. In 1978, the Legislature amended § 3108 so as to include cost-of-living increases in survivors’ loss benefits.
On January 11, 1979, plaintiff filed a motion to enforce its earlier judgment in the trial court, claiming that the defendant had not paid the $1,111 for each 30-day period along with interest and attorney fees as ordered by the court. The trial court granted plaintiff’s motion to enforce the judgment in an opinion dated March 14, 1979. The opinion also indicated that the parties had agreed between themselves as to how to deal with the set-off issue subsequent to this Court’s holding in O’Donnell.
The Court of Appeals granted the defendant’s delayed application for leave to appeal. It affirmed in a per curiam opinion since it found no reasonable relation between the no-fault compensation objectives and the cost-of-living distinction, in § 3108. Davey v DAIIE, 98 Mich App 123; 296 NW2d 12 (1980).
We granted defendant’s application for leave to appeal on May 8, 1981. 411 Mich 900 (1981).
II. Equal Protection and Due Process
The basic issue in the instant appeal is whether the legislative classification denying cost-of-living adjustments to recipients of survivors’ loss benefits under MCL 500.3108; MSA 24.13108, while allowing such adjustments to recipients of work loss benefits under MCL 500.3107; MSA 24.13107, constitutes a denial of due process or equal protection of law under the state and federal constitutions. Before identifying and applying the proper test of judicial review in determining the constitutional propriety of this classification, an explication of the arguments of the parties may aid in understanding our discussion.
A. The Contentions of the Parties
The plaintiff contends that the no-fault statutory scheme arbitrarily creates two classes of people. One class is made up of persons suffering non-fatal injuries in motor vehicle accidents — along with the dependents of the injured insured. MCL 500.3107(b); MSA 24.13107(b). The other legislative class of people is the surviving dependents of persons suffering fatal injuries in motor vehicle accidents. MCL 500.3108; MSA 24.13108.
At the time of the adoption of the no-fault act, the maximum amount payable to both groups in any 30-day period was $1,000. Section 3107(b), authorizing the payment of work loss benefits, stated that such benefits should also reflect annual changes in the cost of living. At the time the plaintiff’s decedent was killed in a motor vehicle accident, § 3108, survivors’ loss benefits, had not yet been amended to include such an adjustment.
Plaintiff argues that the compensable loss suf fered by survivors of a person killed in an automobile accident is subject to the same inflationary pressures as the compensable loss suffered by an injured person and his dependents in a non-fatal automobile accident. Plaintiff further argues that unless the defendant can demonstrate that survivors are less subject to inflationary pressures as compared to persons receiving work loss benefits, this Court should find no rational basis for that distinction. Moreover, the plaintiff believes that her conclusion is buttressed by the fact that the Legislature, after this claim arose, amended § 3108 to include cost-of-living adjustments.
The defendant contends, however, that there is justification in treating the recipients of survivors’ loss benefits differently from the recipients of work loss benefits. The justification is the greater relative compensation for a family when the insured dies as compared with the compensation when the insured does not die. The defendant argues that the recipients of survivors’ loss benefits receive more spendable compensation than do recipients of work loss benefits because in the case of survivors there is one less person to share the compensation. Under the defendant’s reading of the act, the legislative distinction is reasonably related to the objectives of the no-fault scheme which are to provide adequate and prompt reparation while containing the cost of premiums of no-fault automobile insurance.
B. The Proper Constitutional Test
In determining whether socioeconomic legislation like the no-fault act is constitutionally sound, this Court has fashioned a constitutional test, supported by federal case law, which requires the court to look at both the legislative objectives to be achieved and the legislative means to be used. See Shavers v Attorney General, 402 Mich 554; 267 NW2d 72 (1978).
The proper test for judging socioeconomic legislation such as the no-fault act was stated in Shavers as follows:
"The test to determine whether legislation enacted pursuant to the police power comports with due process is whether the legislation bears a reasonable relation to a permissible legislative objective * * *.
"The test to determine whether a statute enacted pursuant to the police power comports with equal protection is, essentially, the same.” (Footnotes omitted.)
In the application of these tests, the challenged legislative scheme is given a presumption of constitutionality. 402 Mich 612-613.
C. Establishing Permissible Objectives
Enactment of the no-fault act was a major departure from prior methods of obtaining reparation for injuries suffered in motor vehicle accidents. The Legislature modified traditional tort principles of compensation by creating a comprehensive statutory scheme of reparation with the objective of providing assured, adequate and prompt recovery for certain economic losses arising from motor vehicle accidents. Miller v State Farm Mutual Automobile Ins Co, 410 Mich 538, 568; 302 NW2d 537 (1981); Belcher v Aetna Casualty & Surety Co, 409 Mich 231, 243; 293 NW2d 594 (1980); Shavers, supra, 579. We have also recognized a complementary legislative objective which is the containment of the premium costs of no-fault insurance. O’Donnell v State Farm Mutual Automobile Ins Co, supra, 404 Mich 549, 567.
D. Applying the Reasonable Relation Test to §3108
It is well-established that the party challenging the constitutional propriety of socioeconomic legislation under the reasonable relation test must show that the legislative scheme is without "reasonable justification”. See Manistee Bank & Trust Co v McGowan, 394 Mich 655, 668; 232 NW2d 636 (1975). Since the permissible objective is to provide assured, adequate and prompt recovery for certain economic losses arising from motor vehicle accidents, it cannot be successfully argued that the benefits provided in § 3108 are not reasonably related to the permissible objective of the legislation.
Plaintiff does not appear to deny that the provision of such benefits satisfies due process, but rather focuses on an alleged lack of equal protection. Plaintiff in effect argues that classifying recipients of survivors’ loss benefits under § 3108 in a different category from recipients of work loss benefits under § 3107(b), who receive cost-of-living increases which recipients of survivors’ loss benefits do not, is arbitrary, because both alike are subject to cost-of-living increases. By this argument, plaintiff attempts to satisfy the obligation to show that the legislative scheme is without "reasonable justification” and to cast the burden of showing reasonableness on defendant.
While plaintiff states a patent truism that the Legislature might wish to consider and, in fact, subsequently did consider, that truism by itself does not meet the requirement for a due process or equal protection challenge. In the face of a due process or equal protection challenge, this Court has stated that its inquiry into a legislative action or judgment is restricted to a determination whether " 'any state of facts either known or which could reasonably be assumed affords support for it’ [citation omitted]. A corollary to this rule is that where the legislative judgment is supported by 'any state of facts either known or which could reasonably be assumed/ although such facts may be 'debatable’, the legislative judgment must be accepted”. Shavers, supra, 613-614. (Emphasis in original.) Plaintiff’s argument does not meet these tests.
As a matter of fact, defendant points out that there are indeed two distinguishing features between the two categories that could justify the Legislature’s discretion in treating them differently. First, under § 3107(b), the beneficiaries other than the injured party have their share of the benefits reduced by the requirements of the injured party, whereas under § 3108 the injured party is deceased and has no such requirements. Second, as we pointed out in Miller, survivors’ loss benefits, by definition, are broader than work loss benefits in providing compensation, because survivors’ loss benefits encompass the value of items apart from and in addition to salary and wages. This legislative difference led this Court to state that:
"Since survivors’ loss benefits will, in many cases, include the value of items other than taxable wage or salary income, while work loss benefits are limited to wage or salary income, reliance on the language of § 3107(b) in the construction of § 3108 is inappropriate.” Miller, supra, 564.
We are compelled to assume such a state of facts, and, thus, we hold that the payment of survivors’ loss benefits without an adjustment for cost-of-living increases is reasonably related to the statutory objective of containing no-fault insurance premi ums under the state and federal constitutions. See Shavers, supra, 613-614.
III. Conclusion
In light of our reading of § 3107(b) (work loss benefits) and § 3108 (survivors’ loss benefits), we hold that the exclusion of cost-of-living adjustments from plaintiffs survivors’ loss benefits is reasonably related to the permissible objectives of the no-fault act under the state and federal constitutions. Moreover, the distinction does not violate equal protection or due process of law solely because the Legislature amended § 3108 to include cost-of-living adjustments after the plaintiff was entitled to benefits.
The decision of the Court of Appeals is reversed. We remand the case to the trial court for computation of survivors’ loss benefits not inconsistent with this opinion.
Because we have reversed the Court of Appeals affirmance of the trial court’s judgment, the plaintiff is not entitled to interest or attorney fees.
Coleman, C.J., and Kavanagh, Levin, Fitzgerald, and Ryan, JJ., concurred with Williams, J.
MCL 500.3108; MSA 24.13108 as originally enacted read:
"Personal protection insurance benefits are payable for a survivors’ loss which consists of a loss, after the date on which the deceased died, of contributions of tangible things of economic value, not including services, that dependents of the deceased at the time of his death would have received for support during their dependency from the deceased if he had not suffered the accidental bodily injury causing death and expenses, not exceeding $20.00 per day, reasonably incurred by these dependents during their dependency and after the date on which the deceased died in obtaining ordinary and necessary services in lieu of those that the deceased would have performed for their benefit if he had not suffered the injury causing death. The benefits payable for survivors’ loss in connection with the death of a person in a single 30-day period shall not exceed $1,000.00 and is not payable beyond the first 3 years after the date of the accident.” 1972 PA 294, § 3108.
Section 3108 was amended by 1978 PA 459, which became effective on October 16, 1978. It now provides:
"(1) Except as provided in subsection (2), personal protection insurance benefits are payable for a survivor’s loss which consists of a loss, after the date on which the deceased died, of contributions of tangible things of economic value, not including services, that dependents of the deceased at the time of the deceased’s death would have received for support during their dependency from the deceased if the deceased had not suffered the accidental bodily injury causing death and expenses, not exceeding $20.00 per day, reasonably incurred by these dependents during their dependency and after the date on which the deceased died in obtaining ordinary and necessary services in lieu of those that the deceased would have performed for their benefit if the deceased had not suffered the injury causing death. Except as provided in section (2) the benefits payable for a survivor’s loss in connection with the death of a person in a single 30-day period shall not exceed $1,000.00 for accidents occurring before October 1, 1978, and shall not exceed $1,475.00 for accidents occurring on or after October 1, 1978, and is not payable beyond the first three years after the date of the accident.
"(2) The maximum payable shall be adjusted annually to reflect changes in the cost of living under rules prescribed by the commissioner. A change in the maximum shall apply only to benefits arising out of accidents occurring subsequent to the date of change in the maximum. The maximum shall apply to the aggregate benefits for all survivors payable under this section on account of the death of any one person.”
MCL 500.3109; MSA 24.13109 indicates that other governmental benefits provided for under the laws of any state or the federal government are to be subtracted from personal protection benefits paid under the no-fault act which includes survivors’ loss benefits. See fn 2. See also O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524; 273 NW2d 829 (1979). Section 3109 provides:
"(1) Benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury.
"(2) An injured person is a natural person suffering accidental bodily injury.
"(3) An insurer providing personal protection insurance benefits may offer, at appropriately reduced premium rates, a deductible of a specified dollar amount which does not exceed $300.00 per accident. This deductible may be applicable to all or any specified types of personal protection insurance benefits but shall apply only to benefits payable to the person named in the policy, his spouse and any relative of either domiciled in the same household. Any other deductible provisions require the prior approval of the commissioner.”
MCL 500.3107(b); MSA 24.13107(b) states that:
"(b) Work loss consisting of loss of income from work an injured person would have performed during the first 3 years after the date of the accident if he had not been injured and expenses not exceeding $20.00 per day, reasonably incurred in obtaining ordinary and necessary services in lieu of those that, if he had not been injured, an injured person would have performed during the first 3 years after the date of the accident, not for income but for the benefit of himself or of his dependent. Work loss does not include any loss after the date on which the injured person dies. Because the benefits received from personal protection insurance for loss of income are not taxable income, the benefits payable for such loss of income shall be reduced 15% unless the claimant presents to the insurer in support of his claim reasonable proof of a lower value of the income tax advantage in his case, in which case the lower value shall apply. The benefits payable for work loss sustained in a single 30-day period and the income earned by an injured person for work during the same period together shall not exceed $1,000.00, which maximum shall apply pro rata to any lesser period of work loss. The maximum shall be adjusted annually to reflect changes in the cost of living under rules prescribed by the commissioner but any change in the maximum shall apply only to benefits arising out of accidents occurring subsequent to the date of change in the maximum.”
See fn 2, supra.
For an excellent comparison of this Court’s development of equal protection principles with federal case law, see Kelman, Foreword: Rediscovering the State Constitutional Bill of Rights, 27 Wayne L Rev 413, 425-428 (1981).
Plaintiffs claims for interest on $111.00 for each of the 36-1/2 thirty-day periods and the award of attorney fees are rendered moot by our reversal of the Court of Appeals and trial court. | [
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Lesinski, C. J.
On January 17, 1969, defendant Leonard Schultz was convicted by a jury of indecent liberties with a minor child. On February 13, 1969, he was sentenced to a term of nine years, 364 days to ten years in prison. On January 13, 1969, defendant Robert Lessard pled guilty to attempted breaking and entering with intent to commit felony or larceny. On February 13, 1969, he was sentenced to a term of four years, 364 days to five years in prison. Since both defendants question the validity of an indeterminate sentence where the minimum term is set one day less than the maximum, we have consolidated the cases on appeal.
On the day that both defendants were sentenced, the trial judge, Circuit Court Judge Arthur Moore, announced a new sentencing policy. On May 28, 1969, during a hearing on a motion for new trial brought by defendant Lessard’s codefendant, Judge Moore articulated his policy:
“For five years * * * I gave every person who had to be incarcerated in prison the very lowest minimum, which is set by statute, which is one year. And I advised the corrections department that I expected them to use their full discretion and release people whenever in their judgment the safety of society and the corrective treatment had been adequate for that individual. And I attempted to employ indeterminate sentence in its fullest extent for that reason.
“Now my experience * * * was that they paid no attention to their obligation to release when they found that correction had taken effect, and that the public was protected, but instead they pursued the same policy concerning my effort to have full indeterminate sentence as they did with every other judge who used his prerogative of setting his sentencing date judgment on minimum imprisonment as an absolute. * * *
“I have a great deal of respect for the corrections department * * * and perhaps there are many reasons why they did what they did, but the long and short of the story is, * * * they made no differential between my effort to give fully indeterminate sentence and the efforts of other judges to set a hard and fast minimum. And I resented it because I thought, I still believe that indeterminate sentence, with the wisdom of the psychologists, the psychiatrists, the corrective authorities, the social workers, and so forth, who ought to be attached to a prison system if it is going to be a corrective system, I then believed and I still believe that that skill of professional people should be used, instead of the present skill of a lawyer at the time of sentencing, who knows nothing about the future except as he guesses at it as to the future behavior or the future risk of a specific individual.
“That was the purpose, that was my disappointment. * * * I have advised the corrections department in relation to all my cases, that I will welcome their recommending earlier releases in any case and that I will cause some skilled people to review the matter based upon what they then know and what they then can tell us, and what they know about it originally, and will not stand in the way of an earlier release jf it is a scientifically advisable release,
“What I am saying is, therefore, that yonr respondent here may be released at any time short of the minimum term providing the corrections department set the matter in motion after they have reviewed the matter and believe he is a creditable risk to society and a reformed individual sufficiently so that he will not likely be a danger to society.
“Now this gives your respondent in my judgment under the total statutes of the state, a better opportunity for earlier release and for what might truthfully be termed real indeterminate sentence, than the past policies of the corrections department and the policies of the judges of this state whereby they eliminate this possibility of earlier release and stand by the minimum sentence of the judge as the very earliest period for release less good time and special good time.
“Now one other thing. The records of the corrections department in the last few years, not this year, indicated that the failures of respondents on parole are in all cases above ten percent and in some cases running as high as forty, fifty, or sixty percent, and that there is no rhyme or reason as to release based upon probability of failure of sentence in specific types of cases.
“For instance, by and large the people who, commit murder are exceptionally good risks on parole, yet they are invariably detained far beyond any scientifically advised need or corrective treatment or longer detention. Unless we revert to the antiquated and I hope discontinued policy of punishing people for the purpose of punishing.
“On the other hand, the persons who steal cars invariably repeat to a high degree and should probably be kept in prison for many years beyond the period of sentence available, otherwise I would say that perhaps half of them are going to repeat and injure society later and the records so show.
“Now I mention all this because I think it is my duty and my job as a sentencing judge to be aware of these matters and try to do exactly what you in your good judgment as an excellent lawyer have tried to do for your individual client. The only thing is, I think I have a broader responsibility than you do, and it applies to every individual.
“It is for this reason that I believe the policy-1 which I have established of advising the corrections department that they may release at any time on their recommendation, providing they gain my support and furnish some scientific reasons or case history or background information which I can review with the help of some experts here, including our local probation department and the policy that I have established, that I will follow their recommendation provided there is no obvious abuse of discretion in that regard and providing there are: reasons for it and I think this comes nearer to the. purpose of indeterminate sentence than the present existing policy carried on by the corrections department now.”
It is claimed that this policy contravenes the spirit and intent of the indeterminate sentence law, MCLA § 769.8 (Stat Ann 1954 Rev § 28.1080), by failing to consider individual factors as bearing on .the length of the minimum sentence:
“When any person shall hereafter be convicted for the first time of crime committed after this act takes effect, the punishment for which prescribed by law may be imprisonment in the state prison at Jackson, the Michigan reformatory at Ionia, the state house of correction and branch of the state1 prison in the upper peninsula, the Detroit house of correction, or any other prison, the court imposing sentence shall not fix a definite term of imprisonment, but shall fix a minimum term except as hereinafter provided. The maximum penalty provided by law shall be the maximum sentence in all cases except as herein provided and shall be stated by. the judge in passing sentence. He shall before or- at the time of passing sneh sentence ascertain by examination of such convict on oath, or otherwise, and by such other evidence as can be obtained tending to indicate briefly the causes of the criminal character or conduct of such convict, which facts and such other facts as shall appear to be pertinent in the case, he shall cause to be entered upon the minutes of the court.”
Although both the Michigan Supreme Court and this Court have repeatedly refused to review sentences fixed within the maximum provided by statute, the expressed “new policy” of the trial judge mandates a consideration of defendants’ claim.
The purpose of indeterminate sentence laws has been stated by our own courts and by the courts of other states. In People v. Cook (1907), 147 Mich 127, 132, the Supreme Court said:
“The design of the indeterminate sentence law is to reform criminals and to convert bad citizens into good citizens, and thus protect society. In order to accomplish this result, the theory is that, when the prisoner has shown by his conduct that he may turn from his criminal career, he should have an opportunity, under favorable circumstances, to make the test. He is in prison for a definite time. Any release therefrom is a favor to him.” (Emphasis supplied.)
In State v. Moore (1952), 21 NJ Super 419, 91 A2d 342, the Court stated (citing Ex parte Collins [1915] 51 Mont 215, 152 P 20):
“The purpose of the new enactment was to so change the rule relating to sentences as to require the court or jury to impose indeterminate sentences in all eases other than those arising out of crimes expressly excepted in section 1, supra, and to lodge in the Governor and board of prison commissioners a discretionary power to grant paroles in all cases in which snch sentences have been imposed * * * at the expiration of the minimum term fixed. The effect of it is, apparently, to amend all the provisions of the Codes relating to terms of imprisonment so far as they are inconsistent with its provisions, and also the provisions relating to the time at which paroles may be granted; for it expressly takes from courts and juries the power to fix definite terms of imprisonment, and enjoins the imposition of indeterminate sentences instead thereof. It also greatly enlarges the discretion of the Governor and the board of prison commissioners with reference to paroles. Evidently the end sought to be attained was to devise a method of treatment of convicts which would encourage in them a disposition to reform, by holding out to them the hope of securing, by reason of exemplary conduct during the minimum term of service, release under the restraints of a parole from actual confinement at profitless labor, and the enjoyment of comparative freedom to pursue some profitable vocation yielding a support to themselves and families, when they have families, and incidentally to regain their standing as useful citizens in the community. There is also held out the hope that by continued good behavior restoration of all civil rights by an absolute pardon will speedily be obtained. Evidently, too, the conception of the Legislature, as indicated by the use of the term ‘indeterminate,’ was that the minimum and maximum terms fixed should be so adjusted as to allow a substantia] period of time to intervene during which the application for parole might be made, and the Governor and board of prison commissioners might determine its merits by inquiry touching the conduct of the applicant, in order to ascertain whether or not he has exhibited a disposition to reform, and hence is entitled to invoke the discretionary power lodged in them.”
It is clear that tbe legislature intended that the sentencing court fit an indeterminate sentence, in the exercise of its discretion, to the needs of the particular case and the requirements of society. See In re Southard (1941), 298 Mich 75, 82. Other statutes make it just as clear that the legislature also desired that the parole board’s actions complement the actions of the trial court through careful, frequent and individual evaluation of the prisoner’s rehabilitative process. As evidenced by the record in this case, it is Judge Moore’s considered opinion that the parole board has not been considering individual factors as a basis of parole but rather has been automatically releasing most prisoners, irrespective of their rehabilitation or the interests of society, upon expiration of their minimum terms.
While the motives of Judge Moore in adopting his sentencing policy are laudatory as they show a genuine concern for the penal problems we face today, the action as it concerns the individual defendants constitutes reversible error in sentencing. The trial court failed to exercise discretion in setting the individual defendant’s minimum sentences.
In remanding for new sentence, we do not intend to dictate to the trial court what the minimum sentence should be nor will we attempt to determine what sort of sentence complies with the requirements for an indeterminate sentence. The trial court is required to impose sentence within his sound discretion in accord with his evaluation of the defendant as an individual.
Remanded for new sentence.
All concurred.
MCLA § 750.336 (Stat Ann 1954 Rev § 28.568).
MCLA § 750.92 (Stat Ann 1962 Rev § 28.287); MOLA § 750.110 (Stat Ann 1969 Cum Supp § 28.305).
Tlie transcript of the hearing on this motion is included in the record in defendant I.ossard’s case.
See People v. Guillett (1955), 342 Mich 1 ; People v. Pate (1965), 2 Mich App 66; People v. Brashaw (1967), 9 Mich App 128; People v. Poole (1967), 7 Mich App 237.
See MCLA § 791.231 et seq. (Stat Ann 1951 Rev § 28.2301 et seq.). | [
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Levin, J.
Daniel C. Gilbert is charged, on evidence that there was a radar detector in a motor vehicle he was driving, with equipping a motor vehicle with a radio receiving set that will receive signals on frequencies assigned for police purposes.
The municipal judge granted Gilbert’s motion to dismiss on the ground that the statute does not apply to radar detectors. The circuit judge reversed and remanded for trial. The Court of Appeals also rejected Gilbert’s challenges but ruled that its decision would be prospective only and, reversing the circuit court, directed that the charges be dismissed.
The principal issue is whether a radar detector is a "radio receiving set” within the meaning of the statute. We hold that it is not because the statute protects the confidentiality of police communications but not electronic surveillance by the police.
The question whether persons should be barred from installing devices designed to detect electronic surveillance by the police was not addressed by the Legislature when this statute was enacted in 1929.
The asserted desirability of barring motorists from installing radar detectors does not justify a court in placing a construction on the statute which the Legislature could not possibly have contemplated in 1929 when the statute was enacted.
The reading of the statute set forth in the opinion of the Court of Appeals and in the dissenting opinion in this Court would bar the equipping of a motor vehicle with a device designed to detect electronic surveillance of speech within the vehicle as well as of a device to detect electronic surveillance of the speed of the vehicle.
The statute subjects offenders to a conviction record of having committed a high misdemeanor and to incarceration for up to one year. If the Legislature were to proscribe radar detectors, it is likely that the penalties for installation or use of a radar detector would be more commensurate with the penalties for speeding.
It is for the Legislature to decide whether, and the extent to which, the detection of police electronic surveillance should be barred. There may be some concern that the Legislature may not act quickly or at all, but that surely is not a proper basis for this Court acting in the name of the Legislature.
I
It appears, as set forth in the dissenting opinion, that radio waves carry signals that can today be perceived visually or audibly. The term "radio receiving set”, thus, may now be construed to include a television set or a radar detector. But at the time the statute was enacted, in 1929, neither television sets nor radar detectors had been developed. At the time, the only radio receiving set. in use was what is today called a radio.
A
The members of the Legislature had in mind a particular device, the radio, and not television sets or radar detectors which had not been developed in 1929. The advance in the art, 10 to 15 years after the statute was enacted, does not enlarge the meaning of the term "radio receiving set” from the only meaning known to those who used that term when the statute was enacted.
The dissenting opinion concludes that a "narrow” construction of the statute "encompasses the term radar detector within the plain meaning of the statute.” (Emphasis added.) This conclusion rests on post-enactment usage: "radar is a convenient acronym for 'RAdio Detection And Ranging’ ” and "Webster’s Third New International Dictionary, Unabridged (1966) Edition, p 1871, has defined 'radar’ as 'a radio device or system for locating an object by means of emitting radio signals’ ”. (Emphasis supplied.)
Words do not stand outside their history. They draw their meaning from it. The plain-meaning rule of statutory construction assumes that the words of a statute have the same meaning to those who authored it and to those who read it. This assumption might be accurate if linguistic usage remained static. But usage and meanings may change considerably over time, and the semantic identity between author and reader which the plain-meaning rule presupposes may be severed. A succeeding generation of readers may read meanings into a text which were never intended. Words chosen to deal with a specific problem may, as a result, be given meanings that could extend their field of application well beyond anything the author could have envisioned.
A court’s responsibility when it construes a statute is to implement the purpose and intent of those who enact it. A failure to consider whether the Legislature understood the meaning of a term quite differently when a statute was enacted than it is understood today would allow a statute to be construed in a manner which extends its intended scope. The proper inquiry is not whether the term "radio receiving set” would be understood by a modern reader to include the use of radar but whether at the time the phrase was used the Legislature provided for this technological development.
B
Radar had yet to be developed when the Legislature enacted this statute in 1929. During the 1930’s, under the veil of military secrecy, scientists were still seeking to develop a method for producing radio signals with short wavelength characteristics so that the speed and position of an object travelling through space could be monitored. Although the term "radar” was not coined until 1942, by 1936 the United States military had successfully developed a radar system for target tracking and navigation. It was only after the Second World War that highway police began to use a simple radar transmitter for the detection of speeding vehicles, the shifting reflections from moving vehicles enabling instant and direct mea surement of their velocity. Thus, at the time this statute was enacted, the Legislature was not in a position to realize that radar would come to be used as a means for detecting speeding motorists, much less to assess the defensive measures motorists would take to avoid surveillance.
The dissenting opinion asserts that it is but an "insignificant difference” that radar, in contrast with conventional radio, does not transform received signals into voice communications. While this difference may seem unimportant today, it helps to identify the actual problem which the Legislature meant to address when it enacted this statute.
Through the enactment of this statute, the Legislature sought to deter criminals from eavesdropping on two-way police communications. It was feared that if criminals were able to pick up police dispatches to the scene of a crime, their escape would be facilitated. The concern which gave rise to statutes designed to assure the confidentiality of two-way police transmissions has been described by a person conversant with the subject of police communications systems in the following manner:
"Secrecy is fundamental to the success of both military and police operations. Premature publication of details connected with criminal investigation has thwarted the police on occasions without number. When radio was adopted as an arm of police communication, secrecy received much serious consideration, since, in radio transmission, information is radiated to all points of the compass. Any person possessing a suitable receiver might listen to police broadcasts. The probability that criminals would exploit this opportunity to their advantage was obvious.
"In the early use of radio in law enforcement, many police officials viewed the problem with anxiety. At the 1924 convention of the International Association of Chiefs of Police, a committee was appointed to prepare a suitable code for police use, in order that information might be transmitted without the possibility of its being intercepted and used for criminal purposes.
"The story has been frequently told of an apartment-house burglar in Chicago who had taken the precaution to tune the receiver in the apartment to the police broadcast frequency. Neighbors reported to the police their suspicions of a burglary and the radio dispatcher immediately went on the air with an alarm broadcast, 'Burglar operating in apartment on sixth floor at 5346 Main Street,’ and ordered squad cars to the scene. Hearing the message, the burglar is said to have written a note of thanks for the warning, pinned it on the radio and made a leisurely departure before the officers arrived.” V. A. Leonard, Police Communications Systems, p 104 (1938).
The behavior this statute sought to outlaw was the breach of confidential two-way police radio communications occurring after a crime against persons or property had been detected. The statute was not meant to protect police attempts to detect crimes by means of a radio technology which had yet to be developed.
Although the preceding history shows that this statute was designed to address a problem of law enforcement superficially similar to the one involved in the instant case, the methods of crime detection and the technology of radio were distinct when the Legislature proscribed the use of "radio receiving sets” capable of receiving police voice transmission. In the years that followed, radio technology became a method for detecting wrongdoing. This advance created opportunities and problems of a different character than those which motivated the passage of this statute. Just as the Legislature could not predict the emergence of radar, we cannot predict the legislative response to this development. To hold that this statute addressed a problem that history tells us could not have been addressed is to impute an intent to the Legislature it could not have had.
Technological innovation may not be an obstacle to the application of a statute where the new technology facilitates the achievement of ends which the Legislature clearly meant to encourage or discourage. But this is not such a case. Here the new technology is itself responsible for generating issues of public policy which the Legislature could not have foreseen or dealt with.
In states where the Legislature has specifically addressed the problem by prohibiting the use of radar detection devices, the statutory language is clear and unambiguous. Where, as here, the enactment of the statute preceded any possible legislative consideration of the public policy issues, the proper course of action is to await legislative judgment, not to engage in an uncertain attempt to anticipate it.
II
The lodestar of statutory construction is legislative purpose or intent. The Court of Appeals declared that the apparent purpose of the statute was "to enhance the efficient and effective execution of police functions” and it was "designed to prevent the monitoring of police movement”. Persons who use radar detectors, designed to frustrate law enforcement, are thus within the policy of the statute which seeks to facilitate effective law enforcement.
The dissenting opinion in this Court does not, in construing the statute, make reference to legislative purpose or intent, apparently because in the view there expressed the "plain meaning” of the statute is that the term "radio receiving set” "encompasses the term radar detector”. The dissenting opinion adverts to statutory purpose in rejecting equal protection and due process challenges; the opinion states that the statute is de signed "to prevent the police from being impeded in the carrying out of their duties”, and "to facilitate law enforcement activity by restricting the use of radio receiving sets in motor vehicles because individuals using such sets could detrimentally monitor police frequencies”, and "the ultimate vice sought to be proscribed is the monitoring of police activity by private motorists”.
In so stating legislative purpose neither the Court of Appeals nor the dissenting opinion acknowledges that while using a radar detector can be characterized as being of the same nature as monitoring a radio-transmitted audible message, it need not be so characterized and there are other ways of looking at the matter.
A
The statute was enacted to prohibit vehicular monitoring of police communications reporting a crime and directing police forces in an effort to apprehend offenders.
Radar detectors do not monitor communications between police officers. They rather alert the user that his vehicle is about to pass through a field of electronic surveillance.
The policy considerations that support the proscription of vehicular monitoring of confidential police communications do not. necessarily extend to monitoring of police electronic surveillance.
Police communications concern the apprehension of persons who have committed crimes against persons or property. The offenders may be and often are armed. Monitoring poses not only the danger that the offenders will escape but that, having been alerted, they will ambush the police. Alerting persons who have committed serious offenses may necessitate the diversion of additional forces to aid the officers who first arrive on the scene and to assist in the pursuit. At stake is the safety of the officers and the enforcement of laws designed to protect persons and property. Although "speed kills” and the enforcement of the traffic laws is of great importance, different values are at stake where the monitoring of electronic surveillance is involved.
B
Under the Court of Appeals construction it would be violative of the statute to install an electronic device designed to determine whether the police are engaged in electronic surveillance of activities other than speeding. It appears that the technology may have already advanced to the point where a radio beam can be directed to hear conversations within an automobile. Or the police might surreptitiously install a radio device on an automobile to monitor conversations within the automobile. The police might install an electronic device at a gate or field to identify automobiles entering the area.
Persons who wish, by installing electronic detection devices, to protect themselves against such police intrusion and surveillance may not be violating any law but merely fearful that their activities, political and not criminal, have come to the attention of the authorities.
Electronic surveillance by the police is serious business and an intrusion into the privacy of anyone who is subjected to it.
While the constitution may protect against use in a criminal prosecution of evidence obtained by warrantless electronic surveillance, it is a matter of public policy to be decided in the first instance by the Legislature whether the police are authorized to conduct such operations. The police derive their authority from the Legislature, not the constitution. The police are not empowered to do whatever is not proscribed in the constitution. The Legislature alone can empower the police to engage in electronic surveillance. The Legislature did not, in 1929, address this issue of públic policy in enacting the statute prohibiting the equipping of a vehicle with a radio receiving set.
Ill
The statutory prohibition against equipping a vehicle with a "radio receiving set” fits into the broad category of crimes known as "possession offenses”. In some instances, the Legislature prohibits the possession of an article not because the article is itself dangerous but because its possession evidences an intent to commit a further criminal act or increases the probability that such an act will be committed. By criminalizing an intermediate step toward the commission of a crime, the Legislature hopes to reduce the likelihood that an ultimate criminal end will be achieved. The activity proscribed by a possession offense derives its harmfulness by reference to the ultimate criminal act which generates legislative concern. The rationale for outlawing radar detectors is not that radar detectors are in and of themselves dangerous, but rather that their use may permit motor ists to escape apprehension for driving in excess of lawful speeds.
Possession offenses are generally thought to merit lesser punishment than the crimes they foreshadow. This conclusion rests on a societal judgment that some crimes are more blameworthy than others and deserve correspondingly greater censure. Because the criminal status of possession offenses, like other inchoate crimes, is derivative and their commission is not an unambiguous signal that a further crime will be committed, the law generally punishes the possession of the means to commit a crime less severely than the crime itself. In no instance does it punish the possession offense more severely. To do otherwise would be to deny a fundamental postulate of the criminal law, viz., that punishment should be proportionate to the gravity of the criminal offense. A construction of a criminal statute which would produce a contrary result is to be avoided.
The Michigan Vehicle Code designates all violations of its prescribed speed limits as civil infractions. The penalty for committing a civil infraction under the code is a fine not to exceed $100; and the infraction is not "a lesser included offense of a criminal offense”. The statute proscribing the equipping of a vehicle with a "radio receiving set” provides that an offender may be punished by a fine up to $500 or by a jail sentence up to one year or both, and an offender commits a high misdemeanor.
Under the Court of Appeals construction, posses sion of a radar detector would carry with it a criminal stigma, although the act which a prohibition of radar detectors would seek to discourage is a civil wrong. A person who violates the speeding laws may be fined no more than $100. The Court of Appeals construction of the statute would thus subject the acquisition of a device that can aid in the violation of the speeding laws to punishment far more severe than the act of speeding itself, and, although speeding is not a criminal offense, would criminalize possession of a radar detector.
Where the targets are potential robbers or burglars, the penalties provided by the statute make sense. This cannot be said where the statute is employed to punish motorists who may violate the traffic laws. It is improbable that the Legislature would adopt such a penalty scheme for a traffic related offense. A legislative purpose to do so is not unmistakable and should not be attributed to the Legislature.
IV
When the construction of the statute set forth in the dissenting opinion is evaluated, whether in light of the history of the statute and radar detectors or teleologically, it is difficult to understand how it can be characterized as "narrow”. There are, minimally, significant doubts concerning the intended reach of the statute. Because courts are wary of creating crimes, penal statutes are to be strictly construed and any ambiguity is to be resolved in favor of lenity:
" 'When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity. And this not out of any sentimental consideration, or for want of sympathy with the purpose of Congress in proscribing evil or antisocial conduct. It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment.’ ” Bell v United States, 349 US 81, 83; 75 S Ct 620; 99 L Ed 905 (1955), quoted approvingly in People v Bergevin, 406 Mich 307, 312; 279 NW2d 528 (1979).
The scope of this statute is at least uncertain; it should be applied only to those acts which the Legislature clearly meant to proscribe. Far from resolving doubts in favor of the accused, the dissenting opinion would stretch the wording of the statute to encompass acts the Legislature not only failed to consider, but was in no position to foresee.
Technological innovation often breeds problems with which the Legislature has yet to grapple. Barring the use of radio detectors in automobiles may embody a wise public policy, but it is one the Legislature has not as yet embraced.
V
Many will agree with the view expressed in the dissenting opinion and by the Court of Appeals that it should be an offense to equip a motor vehicle with a radar detector. Motorists have no legitimate need to alert themselves to such police surveillance, a relatively innocuous intrusion which serves the important purpose of reducing the carnage on the highways. Persons holding that view would support a statute limited to radar detectors. Presumably, however, the potential penalties would not be as severe as are provided in this statute which, again, are considerably in excess of the penalties for speeding.
A statute proscribing possession or use of radar detectors may be in the public interest. But the proposed construction does not so limit the scope of the statute and would bring within its web any radio detector installed for any purpose in an automobile and would put everyone at risk of an expanded application of the precedent which such a construction would establish.
The Legislature can readily address the radar detector problem. The use of radar detectors and the evil they constitute, if evil it be, is well-known.
The Court of Appeals opinion was given prospective effect only. A court should not place a tenu ous construction on this statute to address a problem to which legislative attention is readily directed and which it can readily resolve if in its judgment it is an appropriate subject of legislation.
VI
We have considered whether adoption of the view expressed in the opinion of the Court of Appeals and in the dissenting opinion would render this controversy moot because the construction of the statute there set forth would be given prospective effect only and the charges against Gilbert are dismissed.
In Milford v People’s Community Hospital Authority, 380 Mich 49, 55-56; 155 NW2d 835 (1968), this Court declared that a question which is arguably moot may be decided where the nature of the case is such that this Court is "unlikely to again receive the question in the near future” and it affects a considerable number of persons who "cannot hope to have an answer to the questions raised unless we proceed to a decision”.
The decision of the Court of Appeals in the instant case will govern or largely influence the disposition of other cases until superseded by a decision of this Court. Few persons charged with equipping a motor vehicle with a radio detector have the resources to litigate the question at all, let alone through the district court to the circuit court to the Court of Appeals, and then to this Court. A large number of persons are affected. Law enforcement agencies and the district and circuit courts need a final, definitive ruling. A construction of the statute by this Court will serve to further alert the Legislature to the subject matter. We conclude, as did the Court in Milford v People’s Community Hospital Authority, that "the case is of sufficient importance to warrant our decision” although it may indeed be arguably moot as to the defendant Gilbert.
We affirm the decision of the Court of Appeals insofar as it dismisses the charges against Gilbert.
Coleman, C.J., and Kavanagh, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred with Levin, J.
The Court of Appeals declared that defendant’s automobile was "equipped with a radar detector”. People v Gilbert, 88 Mich App 764, 766; 279 NW2d 546 (1979). The prosecutor states that "[t]he issue of whether a defendant had equipped his vehicle with a police radar detector, or used the same, would be a question of fact”. There has been no trial in this case.
"Sec. 508. Any person who shall equip a vehicle with a radio receiving set that will receive signals sent on frequencies assigned by the federal communications commission of the United States of America for police purposes, or use the same in this state unless such vehicle is used or owned by a peace officer or a bona fide amateur radio operator holding a conditional, general, advanced or extra class amateur license issued by the federal communications commission, without first securing a permit so to do from the commissioner of the Michigan state police upon such application as he may prescribe, shall be guilty of a misdemeanor, punishable by imprisonment in the county jail not more than 1 year or by a fine of not more than $500.00 or by both such fine and imprisonment in the discretion of the court.” MCL 750.508; MSA 28.776.
Our disposition makes it unnecessary to consider the other issues and we intimate no opinion thereon.
People v Gilbert, infra, p 217.
People v Gilbert, infra, p 217.
See Guiseppi v Walling, 144 F2d 608, 624 (CA 2, 1944); Jones, The Plain Meaning Rule and Extrinsic Aids in the Interpretation of Federal Statutes, 25 Wash LQ2 (1939); Murphy, Old Maxims Never Die: The "Plain-Meaning Rule” and Statutory Interpretation in the "Modern” Federal Courts, 75 Colum L Rev 1299 (1975).
White v City of Ann Arbor, 406 Mich 554; 281 NW2d 283 (1979).
People v Gilbert, infra, p 217.
Two New York cases, People v Moore, 92 Misc 2d 807; 401 NYS2d 440 (1978), and People v Faude, 88 Misc 2d 434; 388 NYS2d 562 (1976), construed § 397 of that state’s Vehicle and Traffic Law, the wording of which is virtually identical to the Michigan statute, and reached the conclusion that the term "radio receiving set” does not refer to radar detectors.
The dissenting opinion suggests that the basis for these decisions was that § 397 of the New York Vehicle and Traffic Law was found to be in pari materia with § 140.40 of the New York Penal Law, which prohibited the possession of a radio device by a person intending to use it in the commission of a felony, and that this statute defined a radio device as "any device capable of receiving a wireless voice transmission on any frequency allocated for police use.” (Emphasis added.)
Though the wording of § 140.40 of the New York Penal Law proved dispositive in People v Moore, the court in People v Faude was not content to rest its decision on the wording alone. After noting that § 140.40 of the New York Penal Law defined "radio device” restrictively, it proceeded to find further support for its conclusion in memoranda issued by the organization which spurred passage of both § 397 of the New York Vehicle and Traffic Law and § 140.40 of the New York Penal Law.
"In further support that the Legislature intended section 397 to prohibit only a device capable of receiving voice transmissions is a memorandum of State Association of Chiefs of Police, Inc. That memorandum was written in 1966 when section 397 was amended to include 'motor vehicles’ as opposed to just 'automobiles.’ (NY Legis Ann, 1966, p 26.)
"In discussing the reasoning behind this section, the memorandum states, in part, that: 'It was recently brought to police attention that burglars were operating with the look-out car being tuned to police frequencies listening to each call in case the burglary had been discovered and police cars were sent to the scene * * *. This is a great aid to the thieves in the commission of their burglaries by transmitting information received on the police frequencies by walkietalkie radios to the burglars in the building advising them of any police action in the area’. (See NY Legis Ann, 1966, p 26, supra.)
“In a memorandum of State Association of Chiefs of Police published in reference to the adoption of section 140.40 of the Penal Law, it is noted that the purpose of that section 'is to provide that person is guilty of unlawfully possessing radio device who * * * possesses device capable of receiving signals on frequencies allocated for police use or device capable of transmitting or receiving wireless voice transmission under circumstances evincing intent to use same in commission of certain crimes’ (emphasis added). (See NY Legis Ann, 1970, p 46.)
"A second memorandum indicates that 'This bill would prohibit the operation or maintenance in public places of radio sets capable of receiving signals or frequencies allocated for police use without authorization from appropriate police officials.’ (Emphasis added.) (See NY Legis Ann, 1970, p 54.)
"In both memoranda, it is significant that the term 'signals’ is used synonymously with the term 'voice transmissions’, and 'voice messages.’ Both memoranda go on to describe the activity sought to be prevented by prohibiting the use of these devices as the same activity described in the memorandum dealing with section 397 of the Vehicle and Traffic Law.” 88 Misc 2d 436-437.
Insofar as these materials demonstrate that the New York statute was aimed at the same evil as gave rise to the Michigan statute, the interception of voice communications over police frequencies, People v Faude offers support for the view set forth in this opinion.
See, generally, Christiansen, Technological Change & Statutory Interpretation, 1968 Wis L Rev 556.
For example, the Code of Virginia § 46.1-198.1 prohibits the "use of devices on motor vehicles to detect [the] presence of radar upon highways.” This statute does not use the broad term "radio receiving set” but specifically applies to motor vehicles equipped with mechanisms to alert the operator to the presence of microwaves emitted by police radar systems. Similarly, Oklahoma Statute, title 47, § 11-808 prohibits the use of radar interference devices by motorists; section A.l states that "it shall be unlawful for any person to operate a motor vehicle upon any public road, street, highway or turnpike of this state when such vehicle is equipped with any device designed for the purpose of, or capable of: 1. jamming or distorting signals received by radar.”
The dissenting opinion, viewed in its entirety, contradicts itself. The "plain meaning” rule of statutory construction is said to yield the conclusion that a radar detector is a "radio receiving set”. Then the rule of People v Dempster, 396 Mich 700; 242 NW2d 381 (1976) is said to yield the conclusion that this construction should be given prospective effect. No attempt is made to reconcile these two conclusions although they proceed from contradictory premises. The plain-meaning rule presupposes that the words of a statute are free of ambiguity and that their meaning is readily discernible to anyone who reads them. The Dempster rule becomes operative when there is a "practical possibility of ambiguity” that the words of a statute would not put potential defendants on notice of those acts which the statute forbids.
If a statute is free from ambiguity because its meaning is "plain”, then no "clarifying gloss” on its language would be necessary and the Dempster rule would be inapplicable. If a statute is ambiguous and in need of a "clarifying gloss”, then its meaning would not be "plain”. These two conditions are not capable of being satisfied simultaneously.
People v Gilbert, supra, 88 Mich App 770-771.
People v Gilbert, infra, p 223.
Id.
People v Gilbert, infra, p 224.
For a discussion of the rationale for "possession offenses”, see Fletcher, Rethinking Criminal Law, § 3.4 (1978).
MCL 257.628; MSA 9.2328.
MCL 257.907; MSA 9.2607.
MCL 750.508; MSA 28.776.
In states which bar police radar detectors the penalties for possessing such devices are not more severe than those for violating the speeding laws.
In Virginia, the violation of Va Code § 46.1-198.1, which prohibits the use of radar detection devices, is a traffic infraction punishable by a fine of not less than $25 nor more than $100. Violation of maximum speed restrictions in Virginia constitutes a traffic infraction punishable by a fine of not more than $100. Va Code § 46.1-16.01.
In Oklahoma, the violation of Okla Stat, tit 47, § 11-808.D., which prohibits the use of radar interference devices, is punishable by a fine of not more than $200. A speeding violation is a misdemeanor punishable by a fine of not less than $10 and not more than $200, or not less than 5 days nor more than 30 days in jail, or by both fine and imprisonment. Okla Stat, tit 47, § ll-807(c).
People v Gilbert, infra, p 217.
See People v Hall, 391 Mich 175, 189-190; 215 NW2d 166 (1974).
See Hand, "How Far is a Judge Free in Rendering a Decision?” (1935), reprinted in L. Hand, The Spirit of Liberty 103, 108 (New York: Alfred A. Knopf, 3d ed, 1960):
"When a judge tries to find out what the government would have intended which it did not say, he puts into its mouth things which he thinks it ought to have said, and that is very close to substituting what he himself thinks right. Let him beware, however, or he will usurp the office of government, even though in a small way he must do so in order to execute its real commands at all.”
The Court of Appeals declared that its opinion "serves to put all persons on notice that equipping one’s vehicle with a radar detector is prohibited under Michigan law. As of the date of release of this opinion those persons equipping their vehicle with a radar detector may be prosecuted under MCL 750.508; MSA 28.776.” People v Gilbert, supra, 88 Mich App 774. | [
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Levin, P. J.
The defendant, Ahsyngan Hawk, appeals his conviction of taking possession of and driving away a motor vehicle and his sentence of 4-1/2 to 5 years in state prison. His defense was that he was not criminally responsible because he was depressed by his mother’s death 3-1/2 months before the commission of the offense, and that he was intoxicated at the time the offense was committed.
Present doctrine is that evidence of intoxication is not admissible to negative general intent but that it may be introduced to negative any specific intent where a specific intent is an ingredient of the crime charged. In People v. Stanley (1957), 349 Mich 362, the Michigan Supreme Court held that “intent to steal is not an ingredient of the offense” with which the defendant Hawk was charged, and that one so charged can be convicted upon proof that he “willfully” and without authority took possession of and drove away another’s motor vehicle.
We find no need to consider whether, because of the statutory requirement that the offender act “willfully,” intoxication would be a valid defense. The evidence of intoxication was meager; even if intoxication is a defense, the trial judge was not obliged to acquit the defendant on the sparse proofs presented.
The owner of the stolen automobile left it in a parking lot at 8 a.m. on February 27, 1968. A few hours later, at 11:15 a.m., he discovered it missing and notified the police. The defendant was apprehended shortly thereafter, at 11:40 a.m., driving the automobile. A police officer who interrogated the defendant at 12:40 p.m. that day testified at the trial that the defendant had been drinking but was not drunk. One of the arresting officers testified that the defendant had been drinking. There was no other evidence concerning the defendant’s alleged intoxication at the time the offense was committed.
The defendant’s brother testified that their mother died on November 3, 1967, and that the first person who discovered her death was the defendant. The brother claimed that the defendant took his mother’s death “real hard; he took it harder than anybody else in the family. * * * he never would be aware of anything that’s going on around him. He would just sit and stare and — for hours at the ceiling, the wall. And he just wasn’t to hisself [sic] no more for about three or four months after that.”
The standard by which we review the findings of a trial judge when he sits without a jury, in a criminal as well as in a civil case, is the clearly erroneous standard established in GCB. 1963, 517.1
No psychiatric or other expert testimony was introduced in behalf of the defendant. We have carefully scrutinized the transcript; the only evidence regarding the defendant’s mental state at the time the crime was committed was the evidence already related given by his brother and the testimony of the police officers that the defendant had imbibed short of becoming drunk. We are satisfied that the trial judge did not clearly err in rejecting the defendant’s claim that he was not criminally responsible because he was intoxicated and despondent at the time the crime was committed.
The defendant also contends that his waiver of a trial by jury was not knowingly made. The defendant waived trial by jury at a hearing on August 19, 1968, almost six months after the commission of the charged offense. The previously related evidence concerned his drinking on the date the offense was committed and his mental condition in the 3-1/2 month period intervening between his mother’s death and the date it was committed. There is no evidence whatsoever in the record substantiating the claim, made for the first time on appeal, that at the time the defendant waived trial by jury he was not aware of what he was doing.
Affirmed.
All concurred. ■
MCLA § 750.413 (Stat Ann 1954 Rev § 28.645).
See, generally, People v. Kelley (1970), 21 Mich App 612.
Similarly, People v. Helcher (1968), 14 Mich App 386, fn 1.
See Clark and Marshall, Crimes (6th ed), §6.09, p 389; 21 Am Jur 2d, Criminal Law, § 107, pp 186, 187; 22 CJS Criminal Law, §§ 67, 68, pp 216-219,
People v. Walker (1967), 6 Mich App 600, 604; People v. Teal (1969), 20 Mich App 176; People v. Summers (1968), 15 Mich App 346, 356; People v. Hummel (1969), 19 Mich App 266, 268; People v. Hubbard (1969), 19 Mich App 407, 413.
The defendant was convicted at a trial held October 4, 1968, a month and a half after he waived trial by jury. | [
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Bronson, J.
Plaintiffs are property owners in Charlevoix county. Their lands abut certain unim proved land which was dedicated by plat for use as streets and alleys. Plaintiffs, seeking clarification of their rights under GrCR 1963, 521, the declaratory judgment rule, filed a complaint alleging that Beach Drive and all of the subject streets and alleys as platted have never been formally accepted for streets or alleys; or that, in the alternative, the said streets and alleys were abandoned by the municipal government. Defendants filed a motion to dismiss, and this motion was granted by the trial judge. From this decision in the circuit court for the county of Charlevoix, plaintiffs appeal.
The plat of Pine Point was recorded in 1913. The streets and alleys which are the subject of this litigation lie east of Eastern Avenue in the township of Hayes. It is plaintiffs’ contention that the only improvements to the streets in question have been made by the plaintiffs and at plaintiffs’ expense. That, further, it is not necessary for the public to use the improved portions of each drive which is involved here in order to have access to the Lake Charlevoix area, since Eastern Avenue runs down to the lake and gives access in approximately the same area. Thus, plaintiffs argue, the public would not be excluded from the lake, but only from the 316-foot-long portion of that area designated as Beach Drive which abuts on the lots occupied by plaintiffs’ cottages.
The trial judge in his opinion found:
“[T]hat the provisions of the statute known as the Subdivision Control Act outlines the procedure to be followed instead of the provisions of GCB 1963, 521, known as the Declaratory Judgment Procedure.”
Accordingly, the trial court granted the motion to dismiss, but without prejudice to the plaintiffs’ pro ceeding under the Subdivision Control Act if they so desired.
Basically what we are asked to decide' on appeal is whether in fact the Subdivision Control Act of 1967, being MOLA § 560.101 et seq. (Stat Ann 1969 Cum Supp § 26.430[101] et seq.) is the exclusive remedy available to plaintiffs. The question we have to decide is whether the Subdivision Control Act precludes plaintiffs from proceeding under GCB 1963, 521, the declaratory judgment rule. Without venturing to express any definite opinion as to the compatibility of the statute with the court rule, we feel that plaintiffs in this specific case under these circumstances cannot prevail.
GCB 1963, 521.3 states:
“.3. Other Adequate Bemedy. The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate.”
GCB 1963, 521.1, being the power to make declaratory judgment, is couched in permissive rather than mandatory terms. It states that the circuit court in a case of actual controversy within its jurisdiction “may declare the rights and other legal relations of any interested party seeking a declaratory judgment, whether or not other relief is or could be sought or granted.” The trial court based its opinion in part upon the fact that the General Court Buies became effective in 1963 while the Subdivision Control Act was passed in 1967. The court felt that this was evidence of a specific statutory preemption by the legislature and therefore overruled the General Court Buies. Under today’s decision we feel no need to make any determination on such basis. However, the trial court did say:
“Streets and alleys in the plat are dedicated to the use of the public — not merely the rights of the abutting property owners — therefore, many others besides plaintiffs would be affected were this court or any court to find the plat was never accepted or, if so, that the roads, streets and alleys therein had been abandoned. Certainly such a finding would have the effect of vacating and altering the plat.”
Plaintiffs own some 57 out of 175 parcels in the platted area. Under MCLA §§ 560.224, 560.225 (Stat Ann 1969 Cum Supp §§ 26.430[224], 26.430[225]) specific and detailed provisions are made for notice, publication, mailing, and the persons to-be served with notice. Further, what is at issue is the proposed access route to Lake Charlevoix. Thus, the public is also a party in interest. The facts according to plaintiffs’ brief read:
“During the past several years, persons seeking to use Beach Drive in front of appellants’ cottages for recreational purposes have been asked to go elsewhere, but many have persisted in their efforts to' use the area involved for various purposes, and did immediately prior to institution of suit, petition defendants to open said Beach Drive as a public beach.”
Plaintiffs then state:
“It is not necessary for the public to use the portion of Beach Drive which is here involved to have access to Lake Charlevoix in this vicinity, for the reason that Eastern Avenue runs down to the lake and gives access thereto. Thus, the public would not be excluded from the lake hut only from the 316-foot-long portion of the area designated as Beach Drive which abuts on the lots occupied by appellants’ cottages.”
In a supplemental reply brief, plaintiffs state:
“It would appear that the rights of the other lot owners in the subdivision, as members of the public, are adequately protected by the naming of the township board and the Auditor General as parties defendant and that the township attorney and Attorney General have assumed the burden of preventing any improper invasion of their rights.”
For this proposition they cite the authority of United States v. Illinois Central R. Co. (1894), 154 US 225, 238, 239 (14 S Ct 1015; 38 L Ed 971). However, in that case the United States Supreme Court stated:
“The only parties interested in the public use for which the ground was dedicated are the owners of lots abutting on the ground dedicated, and the public in general. The owners of abutting lots may be presumed to have purchased in part consideration of the enhanced value of the property from the dedication, and it may be conceded they have a right to invoke, through the proper public authorities, the protection of the property in the use for which it was dedicated. The only party interested, outside of abutting owners, is the general public, and the enforcement of any rights which such public may have is vested only in the parties clothed with the execution of such trust, who are in this ease the corporate authorities of the city, as a subordinate agency of the state, and not the United States.”
Thus, it would seem that the Court in United States v. Illinois Central R. Co. differentiated between the public at large and those property owners abutting or within the plat. In the present case plaintiffs owned about one-third of the property in the plat and not all of the abutting property owners are plaintiffs. Under GCR 1963, 521, there is no mandatory procedure for inclusion or notification to those parties not presently directly involved in this litigation. We find that in order to fully and adequately protect all of the abutting land owners, all of the land owners within the plat, and the public at large, the Subdivision Control Act is the preferable means for proceeding, in this case. Accordingly, since GCR 1963, 521.1 is couched in permissive terms, we find that the lower court judge did not abuse bis discretion by refusing to proceed under the declaratory judgment rule.
Affirmed.
All concurred. | [
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Coleman, C.J.
In this case, we are asked to decide whether plaintiff’s claim for accrued retirement benefits, filed long after the applicable statutory period of limitations had expired, is barred. We hold that plaintiff’s claim is barred. Accordingly, we reverse.
I
In 1962, plaintiff Robert Lothian, a veteran member of the Detroit police force, decided to retire. Shortly before his retirement, plaintiff was offered the appointive civilian position of Second Deputy Police Commissioner. Plaintiff accepted the offer. On August 7, 1962, he communicated with the city’s Policemen and Firemen Retirement System to process the necessary papers for his retirement, which was scheduled to take place later that month. At that time, Peter Zylich, the secretary of the board of trustees of the retirement system, informed plaintiff that city policy prohibited persons collecting a salary from the city from simultaneously receiving city-paid pension benefits. Plain tiff was told that he would have to waive his pension benefits for the duration of his civilian employment with the city as Second Deputy Police Commissioner. Plaintiff executed the waiver on August 7. Plaintiff retired from the police force on August 16, 1962. On September 21, 1962, he received his appointment as Second Deputy Commissioner, a capacity in which he served until his retirement in August, 1967.
The catalyst in this case was the Court of Appeals issuance, on June 25, 1973, of its opinion in Van Antwerp v Detroit, 47 Mich App 707; 210 NW2d 3 (1973). The facts of the Van Antwerp case are facially similar to those in the case at bar. There, a pensioner of the City of Detroit had been required to execute a waiver of his pension benefits after his election to the Detroit Common Council because of the same city policy asserted in the instant case. The Court of Appeals determined that the city could not lawfully change the manner in which it administered pension benefits without first amending the Detroit City Charter. The Court additionally held that Mr. Van Antwerp’s waiver was invalid because it did not contemplate a voluntary relinquishment of a known right.
Plaintiff, recognizing a parallel between his situation and that of Mr. Van Antwerp, by letter dated November 14, 1973, demanded voluntary payment of those pension benefits which the retirement system had withheld from him during his tenure as Second Deputy Commissioner. The board of trustees denied his request on January 24, 1974.
On May 8, 1974, plaintiff instituted the present action in the Wayne Circuit Court, alleging that defendants unlawfully withheld $21,247.71 in pension benefits due him, and requesting that mandamus issue against defendants. After an abbreviated trial, the trial court issued a judgment granting mandamus and ordering defendants to pay to plaintiff all pension benefits withheld during his civilian service.
On March 7, 1980, the Court of Appeals affirmed in an unpublished per curiam opinion. This Court granted defendants’ application for leave to appeal on November 20, 1980, 409 Mich 946 (1980).
II
Because the instant case is addressed to the interplay between the equitable doctrine of laches and its counterpart at law, the statute of limitations, we pause briefly to examine the traditional roles of these two doctrines.
A statutory limitations period represents a legislative determination of that reasonable period of time that a claimant will be given in which to file an action. A statute of limitations is a statute of presumption. The fact of " 'delay extending to the limit prescribed’ ”, without further proof, " 'is itself a conclusive bar’ ” to suit, Ramsey v Child, Hulswit & Co, 198 Mich 658, 671; 165 NW 936 (1917). Although at one time limitations provisions were looked upon with disfavor because of the harsh results worked by their application, the modern view treats them as statutes of repose, McKisson v Davenport, 83 Mich 211; 47 NW 100 (1890), and as "wise and beneficial” laws common to " 'all systems of enlightened jurisprudence’ ”. Ramsey, supra, 671. In general, statutes of limitations are regarded as procedural, not substantive, in nature. Forest v Parmalee, 402 Mich 348, 359; 262 NW2d 653 (1978); Buscaino v Rhodes, 385 Mich 474; 189 NW2d 202 (1971). The statute of limitations is assertable as a "perfectly righteous * * * meritorious” affirmative defense. Bigelow v Walraven, 392 Mich 566, 570; 221 NW2d 328 (1974); GCR 1963, 111.7.
Limitations periods created by statute are grounded in a number of worthy policy considerations. They encourage the prompt recovery of damages, Buzzn v Muncey Cartage Co, 248 Mich 64, 67; 226 NW 836 (1929); they penalize plaintiffs who have not been industrious in pursuing their claims, First National Bank of Ovid v Steel, 146 Mich 308; 109 NW 423 (1906); they "afford security against stale demands when the circumstances would be unfavorable to a just examination and decision”, Jenny v Perkins, 17 Mich 28, 33 (1868); they relieve defendants of the prolonged fear of litigation, Bigelow, supra, 576; they prevent fraudulent claims from being asserted, Bailey v Glover, 88 US (21 Wall) 342; 22 L Ed 636 (1875); and they " 'remedy * * * the general inconvenience resulting from delay in the assertion of a legal right which it is practicable to assert’ Lenawee County v Nutten, 234 Mich 391, 396; 208 NW 613 (1926).
There is a maxim in law "that nothing can interrupt the running of the statute of limitation”, Klass v Detroit, 129 Mich 35, 39; 88 NW 204 (1901). However, exceptions to this tenet have been developed by both the courts and the Legislature. Under certain circumstances, e.g., for the duration of a claimant’s personal disability (and perhaps for a specified time thereafter), MCL 600.5851; MSA 27A.5851, the running of the applicable statute of limitations may be suspended. Similarly, this affirmative defense may be waived by failure to plead it, by express agreement not to assert it, or by conduct which estops the defendant from interposing it. See Kibbey v Gordon Mfg Co, 260 Mich 531; 245 NW 512 (1932); Klass, supra; Renackowsky v Board of Water Comm’rs of Detroit, 122 Mich 613; 81 NW 581 (1900); Voorheis v People’s Mutual Benefít Society of Elkhart, Indiana, 91 Mich 469; 51 NW 1109 (1892); Allen v Conklin, 112 Mich 74; 70 NW 339 (1897); 51 Am Jur 2d, Limitation of Actions, §§ 422-452, pp 894-914.
Laches, the corresponding judicially imposed equitable principle, denotes "the passage of time combined with a change in condition which would make it inequitable to enforce a claim against the defendant.” Tray v Whitney, 35 Mich App 529, 536; 192 NW2d 628 (1971). The doctrine of laches reflects "the exercise of the reserved power of equity to withhold relief otherwise regularly given where in the particular case the granting of such relief would be unfair and unjust.” Walsh, Equity, § 102, p 472. Laches differs from the statutes of limitation in that ordinarily it is not measured by the mere passage of time, Smith v Sprague, 244 Mich 577; 222 NW 207 (1928); Chamski v Wayne County Board of Auditors, 288 Mich 238; 284 NW 711 (1939); Chesnow v Nadell, 330 Mich 487; 47 NW2d 666 (1951). Instead, when considering whether a plaintiff is chargeable with laches, we must afford attention to prejudice occasioned by the delay. As a general rule, "[w]here the situation of neither party has changed materially, and the delay of one has not put the other in a worse condition, the defense of laches cannot * * * be recognized.” Walker v Schultz, 175 Mich 280, 293; 141 NW 543 (1913). Simply stated, "laches [is concerned] with the effect of delay”, while "limitations are concerned with the fact of delay”. Sloan v Silberstein, 2 Mich App 660, 676; 141 NW2d 332 (1966). Like its legal counterpart, laches is pled as an affirmative defense. Chippewa County Board of Supervisors v Bennett, 185 Mich 544; 152 NW 229; 153 NW 814 (1915).
Although laches is recognized as a doctrine independent from the statute of limitations, both in its development and in its conceptualization, in Cer tain cases arising in equity courts have readily resorted to a particular technique by which they apply statutory limitations provisions "by analogy”:
"[T]here has been a strong tendency to apply by analogy the corresponding limitation at law fixed by statute upon corresponding legal actions, and to hold that delay beyond that period will bar the action in equity without much attention to whéther an important change in the position of the parties has taken place or not.” Walsh, Equity, § 102, p 474.
See, also, Young v Young, 200 Mich 236; 167 NW 23 (1918); Brown v Harrison, 242 Mich 603; 219 NW 606 (1928). As suggested by the excerpt above, judicial inclination to apply limitations provisions by analogy is limited to those cases in which the law provides relief analogous to that awardable in chancery. "Equity follows the analogies of the law in all cases where an analogous relief is sought upon a similar claim.” Michigan Ins Co of Detroit v Brown, 11 Mich 265, 272 (1863). See, also, People ex rel Attorney General v Michigan Central R Co, 145 Mich 140, 145; 108 NW 772 (1906); Campau v Chene, 1 Mich 400 (1850); Jenny, supra. The reason underlying this "by analogy” technique is self-evident. This approach plugs the gap which might otherwise allow a plaintiff to dodge the bar set up by a limitations statute simply by resorting to an alternate form of relief provided by equity. In this vein, Justice Cooley’s remarks in Smith v Davidson, 40 Mich 632, 633 (1879), are appropriate:
"[I]f [a claim is held] barred at law, it must be held barred in equity also. The policy of the statute * * * cannot be evaded by the party electing one forum rather than another for litigating the rights which he disputes; but equity by analogy will apply the limitation to his case.”
See, also, Michigan Central R Co, supra.
However, it is clear that courts traditionally have not bent to the strictures of a statute of limitations where the law does not supply relief analogous to that afforded in equity. Thus, it is said that where "compelling equities are shown”, Moross v Oakman, 257 Mich 464, 466; 241 NW 181 (1932), or "where the relief is in its nature one of equitable and not of legal cognizance, and the remedy is of a purely equitable nature, equity follows its own rules”, Michigan Ins Co, supra, 272. In such cases, laches will stand on its own as the controlling doctrine.
Thus, laches might be viewed from two different perspectives in the traditional context: (1) in cases which are "purely equitable” or which display "compelling equities”, laches may be invoked by a defendant to bar a plaintiff’s claim without reference to any statutory limitations period, i.e., a claim may be held barred by laches early in the lawsuit, or long after all available statutory limitations provisions have expired, see Rodgers v Beckel, 172 Mich 544, 550; 138 NW 202 (1912); or (2) in equity cases in which corresponding relief is available at law, the existence of laches generally will be ascertained with reference to an analogous statute of limitations.
Ill
On appeal, defendants contend (1) that the Court of Appeals reliance upon this Court’s decision in Seguin v Madison, 328 Mich 600; 44 NW2d 150 (1950), in support of its conclusion that plaintiff’s suit had been timely filed, was misplaced; (2) that MCL 600.5815; MSA 27A.5815 operates to bar plaintiffs action; and (3) that no extenuating circumstances appear on this record to justify an expansion of the applicable statutory limitations period.
A
We first address the propriety of the Court of Appeals reliance upon Seguin and the accuracy of the majority’s analysis of that case in light of the facts presented here. Preliminary to our discussion, a brief summary of the position adopted by the Court of Appeals is warranted.
In discussing the procedural consequences of plaintiffs delay in filing the instant action, the Court of Appeals initially ascertained that plaintiffs action had been filed beyond the six-year limitations period for breach of contract specified in MCL 600.5807; MSA 27A.5807. However, the Court did not consider this factor to be determinative of the question whether plaintiffs action was barred by laches. Instead, the majority proceeded to discuss this Court’s decision in Seguin, distilling therefrom certain principles which it deemed pertinent to the question at hand:
"In Seguin v Madison, 328 Mich 600, 607; 44 NW2d 150 (1950), the Supreme Court indicated that the doc trine of laches, under narrowly prescribed circumstances, may expand the statutory period for bringing suit. In that case, a unanimous Court found that 'Courts of equity accept the statute as fixing a proper period of repose for rights in equity as well as at law and apply it unless the suit is peculiarly equitable in nature or compelling equities are shown’. Thus, the Seguin Court approved a flexible rule to be controlled by the peculiar circumstances of each case. See also Carpenter v Mumby, 86 Mich App 739, 746-748; 273 NW2d 605 (1978).”
The Court then examined the merits of the instant case, determined that they exposed peculiar circumstances which permitted expansion of the limitations period, and concluded that plaintiffs action had not been barred, even though it had been instituted after the period of limitations had expired.
We agree with defendants that the Court of Appeals erred in utilizing Seguin as a basis for affording plaintiff additional time in which to file his action for retirement benefits. We take issue both with the majority’s interpretation of Seguin and with its application of what it perceived to be the "rule” of Seguin in the face of a significant statutory provision, MCL 600.5815; MSA 27A.5815.
The Court of Appeals characterization of Seguin as proposing or approving "a flexible rule to be controlled by the circumstances of each case” is misguided. The Seguin case concerned an action to set aside an interest in lands, commenced more than 30 years after the plaintiffs’ cause of action had accrued. An assortment of equitable relief was requested from the trial court by the plaintiffs. However, the trial court determined that the plaintiffs were chargeable with laches, since they continuously had been apprised of the relevant facts with reference to the lands in question, and yet had delayed filing their action.
On appeal, this Court affirmed. However, contrary to what is suggested by the Court of Appeals in the case at bar, in so doing, we did not "[find] that 'Courts of equity accept the statute as fixing a proper period of repose for rights in equity as well as at law and apply it unless the suit is peculiarly equitable in nature or compelling equities are shown’ ”. In fact, the quoted material did not originate in Seguin at all (as the Court of Appeals indicates), but instead was formulated in an earlier case, Moross, supra. It appears that this language was only quoted by the Seguin Court in an effort to summarize concisely the traditional application of the doctrine of laches. The actual holding of Seguin is neither profound nor particularly significant here. It is merely that courts of equity will decline to assist those who have been dilatory in asserting their claims. Above all, Seguin cannot be viewed as authority for the proposition that flexibility is, in every case, the standard to be used in determining the application of laches.
Even assuming the current validity of the tradi tional rule stated in Moross, that equity will act at times to permit a plaintiff to entertain an action which is late when measured against the stopwatch of the statute of limitations, see, also, Michigan Ins Co, supra, we find that the Court of Appeals erred in its determination that the case at bar presents circumstances which will permit plaintiff to maintain his action despite delay in excess of the applicable limitations provision. As we have stated previously, equity traditionally is governed by its own rules (i.e., laches alone will apply without adherence to statutory provisions) only where the matter is "purely equitable” — no concurrent or analogous relief exists at law to provide a basis for deference in equity to analogous limitation statutes — or where "compelling equities” are exhibited. The instant case cannot be characterized as "purely equitable”, nor can it properly be viewed as a matter riddled with "compelling equities”.
While there are certain equitable aspects to plaintiff’s case, this feature in itself does not warrant denomination of the action as one purely in equity. The heart of plaintiff’s action is that defendants allegedly have breached their contractual obligation to pay to plaintiff certain sums of money upon his retirement from the police force. Equity has been principally invoked with respect to the process through which plaintiff will receive relief (mandamus) if his contractual claim is cognizable.
Nor do we perceive any compelling equities in this case which might work to enlarge the time period given plaintiff in which to file his action. Very simply, this is a case in which plaintiff, wholly apprised of the facts which constituted his cause of action, chose to sleep on his rights until a subsequent appellate court decision roused him to action. Plaintiff could easily have ascertained the merit of his case by referring to the applicable charter provisions in 1962 or thereabouts. Defendants used no artifice or fraud to induce plaintiff to forbear filing suit. Plaintiff has not provided us with any evidence that defendants misrepresented the existence of the city’s retirement policy, or that other fraudulent conduct is to be imputed to them. Under these circumstances, the only party responsible for inducing plaintiff’s delay in presenting his claim is plaintiff himself.
One further commentary upon the Court of Appeals opinion in this case is in order. Neither Seguin nor Moross supports the remarkable proposition that laches may be applied to breathe life into an expired cause of action. Laches is not, by any stretch of the imagination, an affirmative device. It is, instead, a cut-off measure, interposed as a defense designed to lay to rest claims which are stale as well as prejudicial to the defendant. It is equity — and the absence of laches — which have in tradition occasionally permitted plaintiffs to proceed in the face of an expired statutory limitations period.
However, not only did the Court of Appeals err in interpreting Seguin and the traditional laches rule with reference to the facts of the instant case, it also failed to recognize the effect of a statute which we consider to be determinative of the issue before us, MCL 600.5815; MSA 27A.5815.
B
The limitations chapter of the Revised Judica ture Act details a number of provisions which act to suspend or expand the time allotted by statute for bringing an action. Plaintiff does not contend that any of these extending provisions are operable here. Nor does he aver that defendants have expressly waived the laches-limitations defense.
The thrust of plaintiff’s argument in this regard is that defendants are estopped from setting up the laches-limitations defense because their conduct induced him to forbear bringing suit until after the statute had run. Basically, defendants respond that they are not precluded from interposing these defenses, since plaintiff was wholly apprised of the facts which comprised his cause of action at the time he executed the waiver of retirement benefits.
The doctrine of equitable estoppel, a judicially fashioned exception to the general rule which provides that statutes of limitation run without interruption, see Klass, supra, 129 Mich 39, "is essentially a doctrine of waiver” which "serves to extend the applicable statute of limitations — by precluding the defendant from raising the bar of the statute”, Huhtala v Travelers Ins Co, 401 Mich 118, 132-133; 257 NW2d 640 (1977). Equitable estoppel may be introduced to counter a statute of limitations defense so as "to accomplish the prevention of results contrary to good conscience and fair dealing”, McLearn v Hill, 276 Mass 519, 524; 177 NE 617 (1931). Generally, to justify the application of estoppel, one must establish that there has been a false representation or concealment of material fact, coupled with an expectation that the other party will rely upon this conduct, and knowledge of the actual facts on the part of the representing or concealing party. See 28 Am Jur 2d, Estoppel and Waiver, § 35, p 640.
An overview of Michigan cases addressed to the estoppel theory in the context of the statute of limitations defense discloses that this Court has been reluctant to recognize an estoppel in the absence of conduct clearly designed to induce "the plaintiff to refrain from bringing action within the period fixed by statute”. Renackowsky, supra, 122 Mich 616. See Green v Detroit, 87 Mich App 313, 319; 274 NW2d 51 (1978). For example, in Klass, supra, 129 Mich 39-40, this Court observed that the estoppel exception developed by the courts "seems to be limited to cases involving an intentional or negligent deception”. Thus, "the defendant will not be precluded from availing himself of such defense [limitations] unless it can be fairly said that he is responsible for deceiving the plaintiff, and inducing him to postpone action upon some reasonably well grounded belief that his claim will be adjusted if he does not sue.” Similarly, in Hughes v Detroit, 336 Mich 457, 462; 58 NW2d 144 (1953), a case which referred to certain of the language from Klass noted above, this Court emphasized the existence of "inducements * * * held out to plaintiff to delay starting suit” as a requisite for application of the estoppel theory.
Consideration of the factors which must be established to make out an estoppel, along with the limited approach taken in earlier cases to the application of estoppel in the limitations environment, leads us to conclude that plaintiff’s equitable estoppel argument is untenable. Plaintiff has not persuaded us that the statements made to him by Mr. Zylich at the time the waiver was executed amounted to false representations, or that defendants’ conduct involved concealment of any material fact. Defendants, at most, are chargeable only with having implemented a city policy which would be struck down by an appellate court more than a decade later. The only fact represented to plaintiff was that the city had such a policy. Defendants did not intimate that this policy had been judicially tested, or that it was legally unassailable (i.e., that plaintiff would not have had a case against the city had he been of a mind to challenge the policy in court). Notably absent here is the usual sort of conduct which may work an estoppel in the statute of limitations context, e.g., an offer to compromise or settle plaintiff’s claim, a representation that the limitations period was of much greater duration than it actually was, or part payment of plaintiff’s claim. Nor can we impute to defendants conduct which might be labelled "intentional” or even "negligent” deception, see Klass, supra._
In short, we cannot say that defendants’ conduct was designed to induce — or in fact did induce— plaintiff’s delay in commencing his action. All of the material facts surrounding plaintiff’s claim were disclosed to him in 1962 or thereabouts. That the merit of his claim became more evident to plaintiff after the Court of Appeals decision in Van Antwerp is not a significant factor on this record, and certainly does nothing to alter our perception that the responsibility for plaintiff’s action lies with himself. "One cannot sit back, wait years for someone else to act as his stalking horse, and then ride the coattails of a favorable judicial decision irrespective of the delay involved.” Gruca v United States Steel Corp, 495 F2d 1252, 1259 (CA 3, 1974). Certainly, plaintiff, like most other litigants, had a primary obligation to secure prompt resolution of his claim in the courts. Having failed to demonstrate his " 'good faith and diligence to learn the truth’ ”, American Trust Co v Bergstein, 246 Mich 527, 530-531; 224 NW 327 (1929), plaintiff is not entitled to relief on the basis of equitable estoppel, relief which is awardable exclusively in the exercise of good conscience.
IV
We hold that plaintiff’s action in mandamus to recover retirement benefits withheld by defendants for the duration of his civilian employment with the city is barred as a result of plaintiffs extreme and inexcusable delay in filing suit.
Accordingly, we reverse the judgments of the trial court and the Court of Appeals, and we remand this matter to the trial court for proceedings consistent with this opinion.
Kavanagh, Williams, Levin, Fitzgerald, and Ryan, JJ., concurred with Coleman, C.J.
Plaintiffs brief on appeal advises that Mr. Lothian died on December 8, 1980.
The waiver executed by plaintiff read as follows:
"Waiver
"To the Board of Trustees of the
"Policemen and Firemen Retirement System
"I, Robert A. Lothian, being eligible to receive a pension by reason of service in the Detroit Police Department, and desirous of carrying out the duties and functions of Second Deputy Police Commissioner and civilian head of the Police Department’s Business Administration, to which I have been appointed, do hereby waive, release and refuse any pension payments to which I shall be entitled from my effective date on and so long as I shall continue to occupy the appointive title.
"This I do of my own free will and accord.”
Lv den 390 Mich 781 (1973).
The only witnesses at trial were plaintiff and Peter Zylich.
The Court of Appeals panel was split 2 to 1, Judge Bashara dissenting.
The language cited in Ramsey is extracted from Wood v Carpenter, 101 US 135; 25 L Ed 807 (1879).
The historical roots of statutes of limitations are sketched in Comment, Developments in the Law — Statutes of Limitations, 63 Harv L Rev 1177 (1950).
Bell v Morrison, 26 US (1 Pet) 351, 360; 7 L Ed 174 (1828), quoted in Abbott v Michigan State Industries, 303 Mich 575, 580; 6 NW2d 900 (1942).
An exception to the usual rule that statutes of limitations are procedural, rather than substantive, is that where a new cause of action has been created by statute, a limitations statute specifically directed to this new cause of action generally is regarded as substantive. See Comment, Conflict of Laws — The Nature of Statutes of Limitation, 50 Mich L Rev 302 (1951).
Note that the word "laches” is etymologically related to the word "lax”.
Plaintiffs action is founded on contract, i.e., plaintiffs complaint alleges that defendants’ unlawful withholding of pension benefits was in violation of plaintiffs contractual right to uninterrupted benefits. Thus, the Court of Appeals correctly concluded that the six-year limitations period provided for in MCL 600.5807; MSA 27A.5807 applies. That plaintiffs action is denominated as a claim for mandamus should not alter, our determination of the applicable limitations period. McRae v Auditor General, 146 Mich 594; 109 NW 1122 (1906). The record reveals that plaintiff did not file his action within six years after his cause of action accrued.
The Court of Appeals stated:
"The circumstances of the instant case call for the expansion of the statutory period for bringing suit. The defendant attempted to terminate plaintiffs pension benefits pursuant to a publicly undeclared board policy that benefits not be paid while plaintiff was employed by defendant in a civilian capacity. However, the charter provision, upon which defendant’s retirement system is based, contains no language modifying the pension plan in the manner sought by defendant’s board policy. It merely states that eligible retirees shall receive pension benefits. See Title 9, chapter 7 of the Charter of the City of Detroit, Article 6, Section 2.1. Plaintiff was an eligible employee as of the date of his police retirement. His matured right to pension benefits should not have been undermined by defendant’s policy, absent modifying language in the charter or a charter amendment to such effect. Furthermore, and as a consequence of the foregoing, plaintiff’s waiver, which was executed in reliance upon defendant’s policy representations, cannot be considered to have been knowingly or voluntarily entered.”
Mandamus has been described as "a legal process * * * governed by equitable principles.” McRae v Auditor General, 146 Mich 594, 596; 109 NW 1122 (1906). An additional equitable feature in this case is the apparent need for rescission of the waiver in the event plaintiff prevails on the merits of his claim.
The limitations chapter provides, inter alia, that the limitations period prescribed by statute will be tolled in the event of the plaintiffs disability, MCL 600.5851; MSA 27A.5851; when the defendant is absent from the state and the court has not acquired jurisdiction over him, MCL 600.5853; MSA 27A.5853; during times of war, if the plaintiff is a citizen of a country at war with the United States, MCL 600.5854; MSA 27A.5854; while plaintiffs claim remains undiscovered (and for two years after discovery) as a result of defendant’s fraudulent concealment of the cause of action, MCL 600.5855; MSA 27A.5855; and when the complaint has been filed and the defendant has been served, MCL 600.5856; MSA 27A.5856. Naturally, when equity determines to follow the dictates of a limitations statute, or where the statute of limitations is made expressly applicable to suits in equity, these same tolling provisions are relevant.
However, one of these statutory provisions, MCL 600.5855; MSA 27A.5855, is closely allied with plaintiff’s equitable estoppel argument. See Dawson, Estoppel and Statutes of Limitation, 34 Mich L Rev 1, 23-24 (1935); Developments in the Law, supra, 63 Harv L Rev 1222-1223.
One factor "which may bear on the degree of negligence or culpability of the public agency [is] * * * whether it purports to advise and direct or merely to inform and respond to inquiries,” Driscoll v Los Angeles, 67 Cal 2d 297, 307; 61 Cal Rptr 661; 431 P2d 245 (1967).
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Per Curiam.
This case is submitted on the people’s motion to affirm. GCR 1963, 817.5(3). David Leland Geer was convicted of unarmed robbery (MCLA § 750.530 [Stat Ann 1954 Rev § 28.798]) on November 12, 1968, by a jury and was sentenced on December 6,1968, to serve 5 to 15 years in prison.
On appeal, defendant raises four allegations of error: First, did the court err in failing to require the prosecution to show due diligence when the prosecution failed to produce two indorsed witnesses at trial; second, did the court err in failing to require the prosecution to produce defendant’s accomplice at trial; third, did the court err in admitting into evidence certain exhibits; and fourth, did the court err in sentencing defendant to serve 5 to 15 years in prison.
A review of defendant’s brief, people’s brief in support of the motion to affirm and the transcript of the trial discloses no reversible error.
First. While the prosecution is under a duty to produce all witnesses indorsed on the information and all res. gestae witnesses, the defendant may waive their production. People v. O’Dell (1968), 10 Mich App 87.
In this case the defendant’s trial "counsel-' said he had no objection to the nonproduction- of the two witnesses if they were not res gestae witnesses': He made this statement in response to a statement of the prosecutor representing that the two witnesses could testify only that they came upon the victim after the crime had been committed. We see no need to decide whether these witnesses were res gestae witnesses as, absent a claim that the witnesses could testify to matters other than what they, observed after the crime had been committed and the felon(s) had fled, we read the defendant’s’ trial counsel’s response as a waiver of the production of these witnesses.
■Second. The rule requiring the prosecution to indorse on the information and call all res gestae witnesses does not- apply to accomplices. People v. Virgil Brown (1969), 15 Mich App 600, 603; People v. McIntosh (1967), 6 Mich App 62, 68; People v. Raider (1931), 256 Mich 131, 135; People v. McCullough (1890), 81 Mich 25; and People v. Resh (1895), 107 Mich 251. Accordingly, the failure to require the prosecution to produce and call defendant’s accomplice did not constitute error.
Third. The exhibits in question consisted of two pairs of shoes; the victim identified one pair as his shoes and the other pair as the defendant’s. When arrested, the defendant was said to have been wearing the victim’s shoes. There was testimony that the other pair of shoes was found abandoned.
When the shoes were offered, the court asked whether there was any objection to the admission of the “sharp pointed toes,” which were the shoes belonging to the victim. The defendant’s trial counsel responded, “no objection to those.” The court then stated, “They may be admitted. The third exhibit [the shoes belonging to the defendant] will be admitted for what it’s worth. That is all.”
We find no error in admitting in evidence the two pairs of shoes.
Fourth. The sentence imposed was within the statutory limits. The trial judge did, indeed, state that he considered the recommendation of the probation officer which was based on his determination that the defendant was an assaultive person. On this appeal the defendant asserts that the trial judge should have ordered a psychiatric evaluation of the defendant before adopting the probation officer’s conclusion that he was an assaultive person. Again, in the absence of a request for psychiatric evaluation by defendant’s trial counsel at the time of sentencing, there is no basis for a conclusion that the trial judge erred in failing to order one.
The motion to affirm is granted. | [
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Quinn, J.
October 11, 1966, a jury - convicted defendants of conspiracy to violate gambling laws. After sentence, they moved for a new trial which was denied, and they appeal.
Defendants contend they were prejudiced by repeated prejudicial remarks of the prosecuting attorney and police witnesses, persistent attempts by the prosecuting attorney to introduce incompetent evidence and improper closing argument by the prosecuting attorney. As to the latter point, no objection thereto was made at trial and it is not considered on appeal. People v. Hider (1968), 12 Mich App 526.
Our review of the record does not disclose either repeated prejudicial remarks by the prosecuting attorney or his persistent attempts to introduce incompetent evidence. With respect to the latter, the record indicates that the prosecuting attorney’s efforts to introduce evidence already excluded by the trial judge could have arisen from the prosecuting attorney’s misunderstanding of the exclusionary ruling as well as from a deliberate attempt to introduce incompetent evidence, as defendants allege. In such a situation, the curative instruction given by the trial judge after he denied defendants’ motion for mistrial was sufficient to overcome any prejudice to defendants of a reversible nature.
Next, defendants claim they were deprived of a fair trial because the trial judge disallowed questions put by the defense without objection thereto by the prosecuting attorney and the trial judge did not extend similar treatment to the prosecuting attorney. Implicit in this claim is the assertion that the trial judge must treat both sides equally, otherwise the jury may consider him an ally of the people.
The duty of a trial judge at trial is specified in CL 1948, § 768.29 (Stat Ann 1954 Rev §28.1052). Exercise of this duty entails wide discretion on the part of the trial judge, and it is only where an abuse of discretion is shown that an appellate court should interfere with the result of an exercise of that duty. People v. Shaw (1968), 9 Mich App 558. Abuse of discretion is demonstrated not by alleged unequal treatment of defendants as opposed to the prosecution but rather by a showing that defendants had an unfair trial. We did not find such to be the case in People v. Lloyd (1967), 5 Mich App 717, nor do we find it here.
Defendants state their next issue as: “Were defendants prejudiced by being required to answer charges not made in the information?” We consider this to be a “straw man” created by defendants for the purpose of knocking it down. The basis for the issue and defendants’ argument on it is the fact that a police officer was permitted to testify as to how a mutual combine operates. The trial court properly instructed the jury that the testimony was only a general explanation of how the system worked. In addition, the present question was not presented to the court below.
The next issue relates to the daily notes kept by police observers from which they made daily reports. After completing these reports and according to instructions, the observing officers turned the notes over to a superior. Under police department policy, these notes were retained 30 or 60 days and then destroyed. Defendants requested an instruction that because the notes were unavailable, the jury might infer that the notes were unfavorable to the people’s theory of the case. This was denied, but the court did instruct that if the jury found that the notes had been deliberately destroyed, the failure to produce them could be considered in determining the weight and credibility of the witness’s testimony.
If this record supported a finding of spoliation, defendants’ requested instruction should have been given. Trupiano v. Cully (1957), 349 Mich 568. The record does not support such a finding, and we find no error in the denial of the requested instruction. The notes were destroyed as a matter of routine policy after having been compiled. U. S. v. Coplon (CA 2 1950), 185 F2d 629.
During the course of their testimony, police officers were permitted to refresh their memory by reference to their reports prepared from the surveil lance notes previously referred to. This, say defendants, denied them due process. People v. Gorka (1969), 381 Mich 515, holds to the contrary.
Finally defendants contest the admission in evidence of certain gambling paraphernalia seized under a search warrant because the affidavit for the warrant failed to establish probable cause for its issuance. Our reading of the affidavit leads us to a different conclusion, namely: probable cause was shown.
Affirmed.
All concurred.
CL 1948, §§ 750.301, 750.302 and 750.306 (Stat Ann 1954 Rev §§ 28.533, 28.534 and 28.538). | [
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Y. J. Brennan, J.
On November 26, 1968, defendant, Robert Middleton, while in the presence of appointed counsel, tendered a plea of guilty to an open charge of murder and requested the trial court to determine the degree, whether first or second, pursuant to MCLA § 750.318 (Stat Ann 1954 Rev § 28.550). The trial court heard the testimony of three prosecution witnesses and the defendant, found the defendant guilty of murder in the second degree, and sentenced him to life imprisonment. The defendant now appeals as of right, contending (1) that the inquiry before the trial court should not have been whether his gmilt was that of first-degree murder or second-degree murder, but rather whether it was that of second-degree murder or manslaughter, and (2) that the evidence sustains a finding of manslaughter but not second-degree murder. Neither of these contentions is of merit, and we affirm.
MCLA § 750.318 provides in part:
“The jury before whom any person indicted for murder shall be tried shall, if they find such person guilty thereof, ascertain in their verdict, whether it be murder of the first or second degree; but, if such person shall be convicted by confession, the court shall proceed by examination of witnesses to determine the degree of the crime, and shall render judgment accordingly.”
By tendering his plea of guilty to the open charge, the defendant confessed guilt of murder and thereby left only one question for the court, whether his guilt was that of first- or second-degree murder. The statute does not impose an affirmative duty on the trial court to inquire whether a defendant who pleads guilty of murder is instead guilty of the lesser, included offense of manslaughter. In People v. Grillo (1948), 319 Mich 586, the defendant contended that the trial court erred by not conducting the statutory examination upon his pleading guilty of second-degree murder, because manslaughter is a lesser, included offense, and therefore, he argued, a degree of the crime of murder. The Supreme Court rejected his contention, saying, at p 590 :
“ ‘Manslaughter is distinguished from murder in that the element of malice, express or implied, which is the very essence of murder, is absent.’ 2 Gillespie, Michigan Criminal Law & Procedure, § 1381.
“The statute, supra, on which appellant relies, does not require a determination of whether the accused is guilty of manslaughter. People v. Borgetto (1894), 99 Mich 336. See, also, People v. Bradovich (1943), 305 Mich 329, as to convictions on lesser offenses not charged in the information.”
To conclude, the only question to be resolved upon a plea of guilty to an open charge of murder is whether the accused’s guilt is of the first or second degree. Of course, should the evidence reveal that the accused is guilty at most of manslaughter, the trial court would be in error to accept a plea of guilty of murder.
Defendant’s contention that he is guilty at most of manslaughter is based on his account of the killing. It overlooks the testimony of the three witnesses for the prosecution. We have reviewed the record, and this testimony amply supports the trial court’s finding.
Affirmed.
All concurred.
MOLA § 750.317 (Stat Ann 1954 Rev § 28.549). | [
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Danhop, J.
Defendant appeals an order of the circuit judge finding him in contempt of court for failure to comply with a previous order of the court entered September 26, 1967. The September 26, 1967, order entered by the circuit judge under GCR 1963, 908 ordered defendant to pay to the plaintiffs the sum of $4,000 plus interest payable at the rate of $200 per month. Defendant failed to comply and on February 18, 1969, was found to be in contempt of court and ordered committed to the Wayne county jail for a period of 90 days. It is from this order that he appeals.
A recitation of the history of this matter is important so that we may fully understand the context in which this matter reaches us.
In 1958, Nicholas Begovich was arrested and charged with the crime of murder. While in custody he retained the services of defendant, Neil F. Murphy, an attorney licensed to practice in the state of Michigan. Defendant agreed to represent Nicholas Begovich for a fee of $10,000. Defendant initially received $2,500 and subsequently another $4,000 making a $6,500 advance on the fee. Prior to the trial Nicholas Begovich committed suicide.
On August 21, 1958, Joseph Begovich, administrator of the estate of Nicholas Begovich, deceased, instituted a proceeding against the defendant in Wayne county circuit court under Court Rule No 4 (1945) now G-CR 1963, 908. This action was dismissed by the circuit judge on March 9, 1959, with the court ruling that the summary jurisdiction of Buie No 4 applied only to controversies between attorneys and clients and did not survive to the administrator. The administrator had contended that the $6,500 advance by Nicholas Begovich had not been earned and sought recovery in the amount of $4,000. On March 10, 1959, Joseph Begovich as administrator commenced a common-law action in assumpsit against the defendant in the Wayne county circuit court for $4,000. This action was dismissed on motion by the trial court, the trial judge finding that the deceased had entered into a definite contract to pay the defendant $10,000 to represent him in the murder trial. Thus, by committing suicide the deceased had breached his express contract, and therefore, the administrator was barred from recovery. Plaintiff appealed to the Michigan Supreme Court which in Begovich v. Murphy (1960), 359 Mich 156, reversed the lower court. The Supreme Court found that the lower court record did not support the finding of an express contract, but rather, that plaintiff’s declaration sought repayment of funds advanced on an implied contract. Thus, the matter was reversed and remanded for trial. On February 1, 1963 trial resulted in a verdict for the plaintiff administrator, in the amount of $4,000 plus costs.
On October 9, 1963 plaintiff administrator instituted supplementary proceedings in Wayne county circuit court seeking discovery of defendant’s assets and to enjoin defendant from transferring or disposing of any property. On December 24, 1963, the circuit judge ordered the defendant to set up and maintain a set of books and accounts and granted the injunction. On February 23,1964, Joseph Begovich, administrator, died, and present parties are the real parties in interest.
On August 6, 1965, on motion of the plaintiff the circuit judge entered an order finding the defendant in contempt of court for failure to produce books and records as ordered and sentenced him to 30 days confinement in the Wayne county jail. Defendant appealed this contempt order, and this Court on February 4, 1966, entered an order setting aside the contempt order because personal service had not been made on defendant.
On February 16, 1967, plaintiffs moved to enforce payment by the filing of a motion in circuit court asking (a) that an order enter under GCR 1963, 908 requiring payment by the defendant of the amount of verdict, (b) that an order enter for a writ of execution against properties of the defendant. On August 9, 1967, the trial judge entered an opinion in which he ordered the defendant to pay to the plaintiffs’ attorney the sum of $4,000 payable at the rate of $200 per month commencing 30 days from the date of the order. On September 26, 1967 an order was entered under GCR 1963, 908, compelling defendant to pay plaintiffs the sum of $4,000 payable at the rate of $200 per month. Defendant appealed the order of September 26, 1967, to this Court, being the case of Joseph Begovich, as administrator of the estate of Nicholas Begovich v. Neil F. Murphy, Docket No 4515. On July 5, 1968, this Court entered an order dismissing the appeal because of defendant’s failure to order the transcript and file his brief as required by the court rule. and further ordered the defendant to pay to the plaintiff the sum of $400 court costs and punitive damages. On February 7, 1969, a petition to show cause -why- the defendant should not be held in contempt of court was filed in circuit court, and on February 18, 1969, a hearing on- this petition was held at which the defendant was found to be in contempt of court for failure to obey the order of September 26, 1967, and was ordered committed to the Wayne county jail for a period of 90 days.
The question before us is whether the defendant is subject to the provisions of G-CB, 1963, 908. Defendant claims .that there did not exist > between him and the administrator the necessary attorney-client relationship which would subject him to the. provisions of GrCB 1963, 908. With this contention we are unable to agree.
. It is admitted that the amount of $6,500 paid to the defendant by Nicholas Begovich was paid to him at a time when he as an attorney was acting in his professional capacity in representing Nicholas Begovich. In DeKeyzer v. Misner (1932), 258 Mich 208, our Supreme Court on p 210 quoted from In re Minnesota Phonograph Co., 148 App Div 56 (132 NYS 1063):
“ ‘Before a court can enforce payment by an attorney in a summary proceeding, the attorney must have received the money while, the relation of attorney and client existed.’ ”
This relationship did exist. By reason of the judgment heretofore rendered it has been established thqt the, amount of overpayment was. $4,000, and therefore, the question of the amount of the overpayment or the fact that there was an overpayment is settled.
Ordinarily the contempt powers of the court granted in MOLA § 600.1701(5) (Stat Ann 1962 Rev § 27A.1701[5]) may not be used to collect sums of money unless they cannot be collected by execution. Belting v. Wayne Circuit Judge (1928), 245 Mich 111. But this defendant, being an attorney, is not an ordinary debtor. GCR 1963, 908 states as follows :
“Attorneys and counselors are officers of the courts of this state and as such are subject to the summary jurisdiction of such courts. The circuit court of the county in which an attorney resides or has an office has jurisdiction, on verified written complaint of any client, either in person or by attorney and after reasonable notice and hearing, to make any order for the payment of money or for the performance of any act by the attorney which law and justice may require. All courts of record have a like jurisdiction as to all such complaints regarding matters arising in suits or proceedings in such courts.” (Emphasis supplied.)
See, also, MCLA § 600.1701(3) (Stat Ann 1962 Rev § 27A.1701[3]).
As an attorney defendant bears a special responsibility which is placed upon him by reason of being-licensed to practice law. Having received the money by reason of an attorney-client relationship, it having been found that he was unjustly enriched to the extent of $4,000, and having failed to .complete an appeal from the order of the court entered on September 26,1967, he cannot now be heard to complain of punishment for having failed to comply with that order. Peters v. Polvi (1970), 21 Mich App 181.
While it is true that at the time that the September 26, 1967, order was entered the defendant had filed for bankruptcy and the trial court may have felt that execution was unavailable, we do not deem this to be of importance, even though the bankruptcy proceedings were subsequently abandoned.
The defendant having been found to be in violation of a direct order of the circuit court, the court had power to punish the willful disobedience of this order by ordering the imprisonment of the defendant.
Affirmed with costs to the plaintiffs.
All concurred.
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R. B. Burns, P. J.
On March 1,1965 plaintiff filed suit in the United States District Court for the eastern district of Michigan, alleging that it was a California corporation that had purchased from Ecclestone Chemical Company, a Michigan corporation, a quantity of cresylic acid on September 27, 1963, to be used in producing immersion cleaner, but that the acid did not conform to previous samples, was defective and caused plaintiff to suffer substantial damages.
On April 19, 1967 the suit was dismissed without prejudice when during trial it became apparent that plaintiff was also established in Michigan and the court lacked the necessary diversity jurisdiction.
On May 8, 1967 plaintiff filed its present suit but a motion for summary judgment was granted by the trial court on the ground that the action was barred by the three year statute of limitations. MCLA § 600.5805 (Stat Ann 1962 Rev § 27A.5805).
Plaintiff appeals, claiming its cause of action was not in tort but in contract so that the three year statute did not apply, or if the three year statute of limitations did apply it was tolled when plaintiff originally filed suit in Federal court. Because of our decision in regard to the latter claim it will not be necessary to undertake an analysis of the nature of plaintiff’s cause of action against the defendant.
MCLA § 600.5856 (Stat Ann 1962 Rev § 27A.5856) provides:
“The statutes of limitations are tolled when
“(1) the complaint is filed and a copy of the summons and complaint are served on the defendant, or when
“(2) jurisdiction over the defendant is otherwise acquired, or when,
“(3) the complaint is filed and a copy of the summons and complaint in good faith, are placed in the hands of an officer for immediate service, but in this case the statute shall not be tolled longer than 90 days thereafter.”
The committee comment explaining the statute says:
“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 part of the time of limitation, for during such time the statute has been tolled.”
The Federal court suit was not dismissed on the merits; it was dismissed for lack of jurisdiction over the subject matter.
Defendant relies on Lillibridge v. Riley (CA 5, 1963), 316 F2d 232, wherein the United States Court of Appeals, Fifth Circuit, held that in order for the Georgia renewal statute to prevent the operation of the statute of limitations, the first suit must have been one in which the court had jurisdiction of the parties and of the subject matter. This decision was consistent with the applicable law as applied by the Georgia courts.
We prefer the reasoning of Judge Cardozo in Gaines v. The City of New York (1915), 215 NY 533, 537, 539, 540 (109 NE 594-596). The plaintiff sued the city of New York in the city court which did not have jurisdiction over actions against the city. Judge Cardozo wrote:
“Both the Appellate Term and the Appellate Division have held that the limitation prescribed by that section does not apply where the first action has been dismissed for the failure of jurisdiction. They have held that such an action is a nullity for all purposes. We do not share that view.
# # #
“That the plaintiff’s case is within the letter of the statute is hardly doubtful. He brought an action against the defendant, and the action was terminated otherwise than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute, or a final judgment upon the merits. If the protection of the statute is to be denied to him, it ought to be clearly shown that his case, though, within the letter of the statute, is not within its reason. We think that the defendant has been unable to sustain that burden. The statute is designed to insure to the diligent suitor the right to a hearing in court till he reaches a judgment on the merits. Its broad and liberal purpose is not to be frittered away by any narrow construction. The important consideration is that, by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts. When that has been done, a mistaken belief that the court has jurisdiction, stands on the same plane as any other mistake of law. Questions of jurisdiction are often obscure and intricate. * * * There is nothing in the reason of the rule that calls for a distinction between the consequences of error in respect of the jurisdiction of the court and the consequences of any other error in respect of a suitor’s rights.”
For the purposes of diversity jurisdiction a Federal court is in effect only another court of the state. Antrim v. Albrecht (ED Mich, 1954), 121 F Supp 618.
We must presume, absent direct language to the contrary, that our state legislature enacted the tolling statute after due and reasonable consideration of the similar situations that could arise in the courts of this state, including the Federal courts in diversity cases. Defendant received timely notice that plaintiff intended to pursue its claim against it under the substantive law of Michigan. It has not shown any abuse of jurisdiction by plaintiff. We, therefore, discern no reason to hold otherwise than that the plaintiff’s cause of action came within the protective mantle of MCLA § 600.5856 (Stat Ann 1962 Rev § 27A.5856).
Reversed and remanded. Costs to plaintiff.
All concurred,
Ga Code § 3-808.
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Coleman, C.J.
This product liability case arose from the acute anaphylactic (extreme hypersensitivity) reaction resulting in the death of Shirley Smith which occurred when Renografin-60, a product of defendant E. R. Squibb & Sons, Inc., was injected into her blood stream. Such sensitivity is extremely rare and cannot be discovered prior to injection. It is undisputed and clearly reflected in the record that there was no intrinsic defect in the drug.
Plaintiff named the drug manufacturer, various doctors and the hospital as defendants in the action. Upon trial by jury, one doctor received a directed verdict on his behalf. The two other doctors, the hospital and the drug manufacturer were successful in obtaining jury verdicts of no cause of action. Nevertheless, plaintiff received monetary settlements from the two doctors and from the hospital after he filed an appeal of the verdicts. The drug manufacturer, E. R. Squibb & Sons, Inc., is the sole remaining defendant.
In the trial court, plaintiff predicated the drug manufacturer’s liability upon an alleged failure to provide adequate warnings to the medical profession of the dangers indigenous to Renografin-60 and of the proper precautionary procedures. Although counts of breach of implied warranty and negligence were pled, the trial court refused to instruct the jury concerning the implied warranty claim. Furthermore, proffered evidence of subsequent changes in the literature accompanying the product was held inadmissible.
We granted leave to appeal and limited our inquiry to the following issues of law:
1. Whether it was reversible error for the trial judge to refuse to charge the jury regarding breach of implied warranty, and
2. Whether the trial judge improperly excluded evidence of changes in written material made by the defendant subsequent to 1969.
The Court of Appeals answered both questions in the negative and affirmed the jury’s verdict of no cause of action. 69 Mich App 375; 245 NW2d 52 (1976).
The finding of the jury that the warnings were adequate is not at issue. We are here confined to questions of law relating to the adequacy of instructions to the jury and of admissibility of cer tain evidence. We affirm the circuit court and the Court of Appeals.
I
On April 14, 1969, Shirley Smith was referred to St. Joseph Mercy Hospital for an intravenous pyelogram (IVP) by her personal physician, Dr. Kozlinski. An IVP is an X-ray of the kidneys which involves the injection of a contrast medium into the veins. The contrast medium serves as a dye by which X-rays can more effectively reveal the operation of the kidneys. The particular contrast medium used was Renografin-60, a 60% iodine solution manufactured by E. R. Squibb & Sons, Inc.
Plaintiff’s decedent arrived at the hospital on April 16, 1969 at approximately 12:30 p.m. After the patient was prepared by a technician, an emergency room physician, Dr. Scerhelmi, administered the drug. Dr. Scerhelmi injected a one-half cc trial amount and then, slowly, the remainder of the drug. Several minutes subsequent to the injection, Mrs. Smith became nauseated — a not uncommon occurrence. After Dr. Scerhelmi departed, however, a delayed reaction set in. Foam started to form on her mouth, she had difficulty in breathing and fainted. The radiologist, Dr. Dolan, was called. The patient underwent acute anaphylactic shock. All efforts to revive her failed and Shirley Smith died at approximately 2:30 p.m. The cause of death was determined to be a hypersensitive reaction to Renografin-60.
Each packing case of Renografin-60 contained 25 vials, each vial containing 30 cc of the drug. Because of the small size of the vials, no warnings appeared on the labels. However, each vial came with a "package insert” wrapped around it. At the hospital, these individual vials were taken to and placed in cabinets in the X-ray rooms, while the packing cases and the inserts remained in the pharmacy.
Dr. Scerhelmi testified that she had read the Renografin-60 inserts and had read journals on the subject prior to administering the fatal IVP. Moreover, she was an experienced physician who had previously given hundreds of IVP’s.
The inserts were four pages long and contained information concerning the chemical contents, dosage, functions, precautions and adverse reactions relative to Renografin-60. The possibility of delayed anaphylactic reactions was stated in the text and further specific recommendations for diagnosis and treatment were set forth in an article (17 pages long) cited in a footnote.
As Dr. Dolan said about the Squibb warnings:
"Every single piece of this medicine has it with it. Every intravenous pyelogram has literature with it, contraindications, contraindications and reactions. The company has literature in everything. This is the way it’s packed. Even if you don’t know them, you can read them and know what to expect, what might happen, even without any medical knowledge * * *.”
As a method of sales promotion primarily, drug manufacturers also commonly inform physicians concerning prescription drugs by two other methods. The information is published in the Physicians Desk Reference to Pharmaceuticals and Biologicals (PDR). This annual volume contains information supplied by drug manufacturers relevant to each product. The 1969 publication of the PDR did not mention the possible adverse effects of Renografin-60.
The other method of conveying information to the medical profession is through "detail men”. Detail men are sales representatives of the drug companies who extol the virtues of the product while presumably instructing doctors in the proper method of administering the drugs. Squibb’s detail man had briefed all radiologists at the hospital prior to Shirley Smith’s injection. Dr. Scerhelmi was an emergency room physician and not a radiologist so she was not present on these occasions.
The essence of plaintiffs allegations against Squibb is that adequate warnings relative to inherent dangers and necessary precautions were not conveyed to doctors prescribing and using Renografin-60. Such failure is alleged to constitute both a defect in the drug and negligence on the part of the manufacturer.
II
,The Court of Appeals held that in the context of an alleged failure to provide adequate warnings, breach of implied warranty and negligence involve identical evidence and require proof of exactly the same elements. Although facially contradictory, upon thorough analysis this position becomes both compelling and irrefutable.
A manufacturer of a prescription drug has a legal duty to warn the medical profession, not the patient, of any risks inherent in the use of the drug which the manufacturer knows or should know to exist. McEwen v Ortho Pharmaceutical Corp, 270 Or 375; 528 P2d 522 (1974), Sterling Drug, Inc v Yarrow, 408 F2d 978, 993 (CA 8, 1969), Love v Wolf, 226 Cal App 2d 378, 395; 38 Cal Rptr 183, 192-193 (1964). However, this duty has been held to require warnings to the patient when the prescription drug is administered in a mass immunization program. E.g, Davis v Wyeth Laboratories, Inc, 399 F2d 121 (CA 9, 1968). Determination of whether this duty has been breached in the context of a negligence claim necessitates that the warnings given be examined as to their reasonableness under the circumstances.
Breach of implied warranty, on the other hand, is established when plaintiff proves that a product defect attributable to the manufacturer has a causal relationship to plaintiff’s injuries. Heckel v American Coupling Corp, 384 Mich 19, 22; 179 NW2d 381 (1970), Piercefield v Remington Arms Co, 375 Mich 85, 96-99; 133 NW2d 129 (1965). It is commonly accepted that inadequate warnings alone can constitute a product defect, whether the theory be implied warranty or strict liability in tort. E.g., Gutowski v M & R Plastics & Coating, Inc, 60 Mich App 499; 231 NW2d 456 (1975), Berkebile v Brantly Helicopter Corp, 225 Pa Super 349; 311 A2d 140 (1973), 2 Restatement Torts, 2d, § 402A, Comments h-k, Noel, Products Defective Because of Inadequate Directions or Warnings, 23 SW L J 256 (1969). As noted by the Court below, it is also generally recognized "that implied warranty and negligence are separate and distinct theories of recovery and that under the implied warranty theory it is not necessary to prove negligence”. 69 Mich App 375, 381 (citation omitted).
The distinction between the elements of negligence and breach of implied warranty is that in the former plaintiff must prove that the defect was caused by the manufacturer’s negligence, whereas under the warranty theory, plaintiff need only establish that the defect was attributable to the manufacturer, regardless of the amount of care utilized by the manufacturer.
However, when the factual issue is not whether the product itself is defective, but is whether the manufacturer has provided adequate warnings, the existence of a product defect and a breach of duty is determined by the same standard — reasonable care under the circumstances. In the context of a product liability case, it has been said that "[t]he standard by which a jury determines adequacy is the general negligence standard that liability is created by 'conduct which falls below the standard established by law for the protection of others against unreasonably great risks of harm’ ”. Gutowski, supra, pp 507-508, quoting from Prosser, Law of Torts, (4th ed), p 145. On the facts, therefore, the two theories involve identical facts and require proof of exactly the same elements. This is true because the focus is upon the adequacy of the warnings, regardless of the theory of liability.
Although plaintiff is correct when he argues that negligence and implied warranty are separate and distinct theories, it is clear that Renografin-60 could not be defective unless Squibb was negligent. The test for determining whether a legal duty has been breached is whether defendant exercised reasonable care under the circumstances. Determination of whether a product defect exists because of an inadequate warning requires the use of an identical standard. Consequently, when liability turns on the adequacy of a warning, the issue is one of reasonable care, regardless of whether the theory pled is negligence, implied warranty or strict liability in tort. See, e.g., Gutowski, supra, Basko v Sterling Drug, Inc, 416 F2d 417, 427 (CA 2, 1969), Kidwell, The Duty to Warn: A Description of the Model of Decision, 53 Texas L Rev 1375 (1975), Merrill, Compensation for Prescription Drug Injuries, 59 Va L Rev 1, 31 (1973).
We hold, therefore, that the trial court did not commit reversible error when it refused to instruct the jury on plaintiffs implied warranty theory and submitted the case solely on the negligence claim. Indeed, such an instruction would have been repetitive and unnecessary and could possibly have misled the jury into believing that plaintiff could recover on the warranty count even if Squibb , were not negligent. Such is not the law, given this factual setting. See Skaggs v Clairol, Inc, 6 Cal App 3d 1; 85 Cal Rptr 584 (1970) (hearing granted, June 17, 1970, dismissed by stipulation), Rainbow v Albert Elia Bldg Co, 49 AD 2d 250; 373 NYS2d 928 (1975). Duplicative instructions could have created jury confusion and prejudicial error. We believe the trial judge properly exercised his discretion in this matter.
This opinion is limited solely to its facts. We do not suggest that implied warranty and negligence are not independent causes of action. When the factual issue is the adequacy of the warnings given, the legal standard under either theory is one of reasonable care under the circumstances. Note should be made, however, that on different facts it could be prejudicial error not to give the implied warranty instruction. See, e.g., Midgley v S S Kresge Co, 55 Cal App 3d 67; 127 Cal Rptr 217 (1976) (issue of contributory negligence requires instruction,on both negligence and strict liability).
Ill
Plaintiff contends that the trial court erred when it held that evidence of subsequent changes in the Renografin-60 package inserts and PDR references was inadmissible. The record indicates that Squibb made its warnings and instructions even more explicit in later years. The trial court relied on Michigan’s strong policy against admitting evidence of subsequent remedial measures for the purpose of proving negligence. Crews v Gen eral Motors Corp, 400 Mich 208; 253 NW2d 617 (1977), and MRE 407. See, also, Judis v Borg-Warner Corp, 339 Mich 313; 63 NW2d 647 (1954), and Denolf v Frank L Jursik Co, 395 Mich 661; 238 NW2d 1 (1976).
We hold that the trial judge properly excluded the proffered evidence. MRE 407 reads:
"When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.” Also see committee comments.
Exclusion under the rule restates a basic tenet which has long been accepted in Michigan. It encourages persons to improve their products, property, services and customs without risk of prejudicing any court proceeding and consequently delaying implementation of improvements. See Crews, supra, Denolf, supra, Judis, supra, Grawey v Genesee County Road Commission, 48 Mich App 742; 211 NW2d 68 (1973). Plaintiffs contention does not fall within any exceptions to the rule.
It is irrelevant that this is a product liability case. Plaintiffs argument that the evidence should have been admitted under his implied warranty count ignores the essence of his legal position on these facts. As the Court of Appeals stated:
"Inasmuch as the plaintiffs entire case was built around proof of an inadequate warning, a negligence concept, * * * the theoretical distinction between negligence and implied warranty may not be exploited to obviate the policy reasons for the exclusionary rule.” 69 Mich App 375, 387.
Plaintiff sought to have the evidence admitted to buttress his argument that the warnings were inadequate. In light of the recent adoption of MRE 407 and the Court’s continuing policy, the trial court’s action was entirely proper.
IV
The case is decided upon the instructional and evidentiary issues raised by plaintiff and is limited to its facts. We find no prejudicial or legal error on the part of the trial court.
It is conceded that the product was pure, but it is contended that the warning of its possible, if extremely rare, effect upon a hypersensitive person was inadequate. This is a negligence concept. Whether approached on the legal theory of implied warranty or of negligence, the proofs and the jury instructions would be the same in essential part. A duplication of instructions could be not only confusing but possibly misleading. The jury did not find the negligence urged by the plaintiff and essential to both theories. We find no legal error committed by the trial judge. Therefore, we affirm.
We also affirm the decision as to the issue of whether the court erred in precluding evidence of a subsequent change in the warning. The policy against allowing such evidence is well established in Michigan and continued in the new rules of evidence, specifically in MRE 407 which would be applicable in the requested new trial, so reversal on this point would be meaningless as well as improper. We find that the court did not err.
Affirmed.
Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred with Coleman, C.J.
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Coleman, C.J.
Defendant was convicted of receiving stolen property valued at more than $100. In a 1 to 1 to 1 decision, the Court of Appeals reversed, finding that defendant was arrested without probable cause and that he and his automobile had been improperly searched. 70 Mich App 7; 245 NW2d 384 (1976).
We reverse and reinstate the conviction.
I
While investigating a stolen car ring on March 14, 1972, officers of the Michigan State Police Intelligence Section, Organized Crime Unit, had staked out the Telegraph House Motel parking lot. They were watching a 1972 Continental Mark IV which had been identified as stolen and which was known to have an altered vehicle identification number (VIN).
Two other automobiles, a 1969 Cadillac (Ohio license plates) driven by defendant and a Ford Maverick, entered the motel parking lot sepa rately. The persons in the cars went into the motel separately, but the drivers of the stolen Mark IV, the Cadillac, and the Maverick left the motel together. They then drove the vehicles on the same route, followed by the state police officers and officers of the Southfield police.
All three cars under surveillance pulled into the same gas station on Nine Mile Road and stopped.
At the gas station, Southfield Officer McKee asked defendant for his license and the Cadillac’s registration. The defendant gave Officer McKee a license and a purported registration for the car. McKee handed the documents to his partner, Southfield Officer George. Officer George had been specially trained in the identification of altered VINs. He compared the VIN on the registration proffered by the defendant with the VIN stamped on a plate affixed to the dashboard of the Cadillac in plain view. The VINs matched each other but the VIN on the dashboard appeared to have been altered. At trial, Officer George testified:
”Q. Okay. Now, Officer, when you looked at that VIN plate out there at the scene, at the gas station, did you observe anything about it?
"A. Yes, sir, I observed that two numbers appeared to be out of line with the rest.
”Q. And, which two numbérs, please?
"A. The first two numbers are 2 and 4 were the numbers.
"Q. Okay. And, you did observe that with the naked eye?
"A. Yes, sir, I did.
"Q. Now, Officer, if you recall, did you confiscate the VIN plate or someone else?
"A. Someone else did, sir.
"Q. Now, Officer, what transpired next after the VIN plate was checked?
"A. At that time I informed Mr. Brooks that we would further — we would like to further check as far as ownership of the vehicle, and asked him if he would mind coming into the station while this check took place.
”Q. And, did Mr. Brooks reply?
"A. He said he didn’t mind, he would come in.”
The license given by the defendant to the officers was in the defendant’s name, but the purported registration bore the name of a Mr. Willie J. Benman of Ohio.
In the Court of Appeals, Judge T. M. Burns wrote an opinion with Judge D. E. Holbrook, Jr., concurring only in the result. Judge V. J. Brennan dissented. Judge Burns said there could "be little dispute that defendant was under arrest when he accompanied the police officer to the Southfield police station”.
We do not know the state of defendant’s mind as to whether he thought he could refuse the "invitation”, but we will give defendant the benefit of his argument that he was in fact arrested at the gas station.
Judge Burns concluded there was an arrest and that it was made without reasonable or probable cause.
Judge Brennan’s dissent reviewed the circumstances and found them "highly suspicious”:
"Defendant was brought under surveillance and was stopped by police because he was driving a vehicle clearly travelling in tandem with two other automobiles, one of which was known to be stolen. The stolen automobile, a Continental Mark IV, was known to have a false VIN plate. All of the vehicles had been originally observed together at the Telegraph House Motel before leaving the motel in a group. In addition, they all travelled in identical route for several blocks to the gas station. Certainly the police officers acted reasonably in stopping and investigating defendant when the vehicles pulled up at the gas station.”
He said Officer George’s discovery that the Cadillac’s VIN plate was altered provided reasonable cause to arrest, a facet of the whole not addressed by Judge Burns.
MCL 764.15(a); MSA 28.874(a) allows a policeman "without a warrant, [to] arrest a person * * * for the commission of any * * * misdemeanor committed in his presence(Emphasis added.)
It is a misdemeanor to ’’misrepresent the identity of a motor vehicle * * * by removing or defacing the manufacturer’s serial number [the VIN] * * * or by replacing any part of such motor vehicle * * * bearing the serial number * * * with a new part, upon which the proper serial number * * * has not been stamped”. (Emphasis added.) MCL 750.415; MSA 28.647. Possession of a motor vehicle with an "altered” VIN is, under this statute, "prima facie evidence of violation” of this law.
Under the circumstances of this case, the officers were justified in concluding that the defendant was "misrepresent[ing] the identity of a motor vehicle” in their presence. They had observed the defendant driving a late model Cadillac (a frequent target of stolen car rings) and leaving a motel and traveling together with a late model Lincoln Continental Mark IV (also a frequent target of stolen car rings). They knew also that the VIN on the Continental had been altered and that the car had been stolen. When they asked the defendant for the Cadillac’s registration, he handed them a registration bearing the name of Mr. Willie J. Ben-man of Ohio. They observed that the VIN on the Cadillac’s dashboard also had been altered and that the VIN on the purported registration proffered by the defendant matched the altered VIN on the dashboard. These observations, taken together, were more than sufficient to justify a con elusion that the defendant was "misrepresenting] the identity of a motor vehicle” in their presence.
It is true that the officers did not observe the defendant physically altering the VIN on the Cadillac’s dashboard, although they did observe the misrepresentation — and herein lies the critical point of difference between the analyses in our opinions.
We cannot attribute to the Legislature the intention that the police must witness both the physical act of altering and the act of misrepresenting in order to arrest a defendant without a warrant for commission of this crime.
At the outset, we consider the meaning of "misrepresentation” and observe that it cannot be accomplished by viewing one’s own work as it is being done (i.e., in this case, altering the VIN). Black’s Law Dictionary (4th ed) provides this definition of misrepresentation:
"Any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts.” (Emphasis added.)
To interpret the statute as requiring that the police must witness both the altering and the misrepresentation would for all practical purposes make the statute unenforceable. Persons engaged in the illicit business of stealing and disposing of cars for cash do not ply their trade in public. VIN numbers are not likely to be altered in broad daylight and in plain view. They are doctored in the secrecy of garages and "chop shops” throughout the state. Therefore, the physical act of alteration is rarely observed. Furthermore, stolen automobiles are extremely mobile and fungible. Within hours they can be driven to another state or country or they can be dissected into their component parts, irrevocably beyond identification or recovery.
We believe the Legislature was aware of these facts when it made possession of a motor vehicle with an "altered” VIN "prima facie” evidence of commission of this crime. When, as here, a police officer observes the accomplished fact of physical alteration together with an act of misrepresentation, it would make little sense to send the possessor freely on his or her way. By the time a warrant could be obtained, the culprit and the car would be long gone.
For these reasons, we hold that the arrest of the defendant at the gas station was valid. Therefore, the Cadillac, which was the primary evidence of the crime, was properly seized incident to the arrest.
II
After defendant’s Cadillac was driven to the Southfield Police Station, it was inspected by Robert Campbell of the National Automobile Theft Bureau. He agreed it "was obvious from looking at [the VIN plate that] it was not an original factory plate or the one inserted by the factory”. Among the factors noted was that "the numbers are not straight as when they are automatically embossed”.
After checking the plate, Mr. Campbell crawled under the car to check the identification numbers stamped on the outside of the engine and frame. They did not match the numbers on the VIN plate. A computer check of the true numbers showed that the Cadillac was stolen. (See fh 2.)
Judge Burns said that Mr. Campbell had searched the car. He found no justification for the search and concluded that "evidence of the correct vehicle identification numbers, that the VIN plate had been tampered with and the resulting evidence that the car had been stolen should have been suppressed”.
He assumed there had been a search. Judge Brennan said "the search for the proper VIN was not an illegal 'search’ and the results were admissible at trial”.
The first inquiry is "whether or not there was a search”, "whether * * * the police conduct violated the defendant’s reasonable expectation of privacy”. The test to determine if a search occurred can be simply stated: "if an individual has a reasonable expectation of privacy in the area searched * * * a search has been conducted”.
In People v Valoppi, 61 Mich App 470; 233 NW2d 41 (1975) (cited by Judge Brennan), the police checked a hidden VIN to determine that a car was stolen. The defendant said there was an illegal search. The Court of Appeals found "no search took place” citing United States v Johnson, 431 F2d 441 (CA 5, 1970), and United States v Polk, 433 F2d 644 (CA 5, 1970).
The Johnson decision was an en banc affirmance of an earlier opinion. The circuit judges found
"that inspections of motor vehicles performed by police officers, who were entitled to be on the property where the vehicles were located, which in no way damaged the vehicles and were limited to determining the correct identification numbers thereof were not searches within the meaning of the Fourth Amendment; and that alternatively, if either of such inspections constituted a Fourth Amendment search, then no search warrant was necessary because such inspections were reasonable and did not violate the right of the people to be secure in their persons, houses, papers or effects”.
Johnson was further explained in Polk which held there can "be no reasonable expectation of privacy with respect to the identity of the VIN”. Polk was extensively quoted in Valoppi.
The Seventh Circuit considered a situation similar to ours in United States v Zemke, 457 F2d 110 (CA 7, 1972), cert den, 406 US 947 (1972). An Indiana state policeman noticed two motorcyclists parked under a bridge and stopped to see if they needed assistance. They did not. The officer then checked their licenses and "glanced” at the vehicle identification numbers. The numbers "appeared to him to have been changed”. In Indiana, as in Michigan, it is prima facie evidence of a crime to possess a vehicle with altered numbers.
The officer told the cyclists about the law and said he "would like to look into it a little more carefully”. The cyclists agreed to go with him to a service station down the road. While there, the officer discovered that the hidden serial numbers did not match the visible ones. He arrested both cyclists.
On appeal, the cyclists said the officer "did not have probable cause to search their vehicles without their consent and * * * did not have probable cause to arrest them” until after the search. The Seventh Circuit found the contentions "meritless”.
The Court found "nothing unreasonable nor any improper invasion of the defendants’ rights” in the officer’s noting that the identification numbers appeared altered:
"Even if the officer’s glance had brought merely the-suggestion of an alteration to his mind it should not in our opinion be a basis for him just to drop the matter there subject to checking through records back at the post while the cyclists proceeded merrily toward unknown destinations.”
The Court did not "consider the police activity at the roadside spot as being a search”. Even if it were considered a search, "it would bring into play the application of the 'plain view’ doctrine”.
The Court said the officer had "adequate probable cause” to check hidden numbers at the original site. Therefore
"[sjince the completion of the inspection was permissible at the point of first contact it did not become less so when and where actually conducted”.
Similarly, in the case at bar, because it would have been proper at the gas station to compare the true VIN under the car with the altered VIN plate in plain view above (and because the seizure and transportation of the car to the station was proper), it was not less proper at the police station. There is no reasonable expectation of privacy in the VIN itself. All such numbers are on the. outside of the automobile, or they are in plain view. No entry is required to read the VIN. The means taken by the police to read this VIN did not invade a constitutionally protected area.
Ill
After Mr. Campbell found the VIN on the un derside of the Cadillac and after a computer check disclosed that the Cadillac was stolen, defendant was formally arrested. He was taken to the booking room where an inventory search was made.
When defendant took off his left sock, Officer McKee noticed a small piece of paper tucked into it. In contrast to removal of his shoes and right sock, defendant removed the left sock carefully and slowly and appeared to be trying to tuck the paper further into it with his thumb. The officer shook the sock and a "peach or flesh-colored” folded piece of paper fell out. It appeared to Officers McKee and George to be a temporary driver’s license. When Officer McKee unfolded it, he found it was in fact a temporary driver’s license for Willie J. Benman, the same name as that on the registration which defendant displayed at the gas station. The license was admitted into evidence at trial after a suppression hearing.
Judge Burns said that "[s]ince the incarceration of the defendant was unjustified, the inventory search which produced the temporary driver’s license was invalid”. Judge Brennan described the search as occurring "[o]nly following formal, valid arrest”.
Defendant concedes in this Court that if the original arrest was lawful, "the seizure of the folded paper in the instant case would not be the result of a search and must be regarded as proper”. However, defendant claims that "the unfolding and inspection of the seized paper presents an entirely new and separate situation” and that a search warrant was necessary prior to its unfolding and subsequent admission into evidence.
In People v Henry Robinson, 37 Mich App 115; 194 NW2d 537 (1971), the defendant had been improperly arrested. During an inventory search, the police saw a lighter which connected defendant with another crime. The majority refused to suppress the lighter because defendant had not objected to its admission prior to trial or when it was introduced.
The concurrence noted:
"When a person is arrested and jailed it is a customary procedure to require him to remove and deposit his personal belongings with the jailer.
"Information obtained by a police officer through the exercise of his senses as he observes articles being removed by a prisoner from his pockets and transferred to a receptacle for safekeeping is not information obtained as a result of a search.”
In People v Robinson, 388 Mich 630; 202 NW2d 288 (1972), our Court affirmed, agreeing with the reasoning of the majority and with those two paragraphs of the concurring opinion.
The defendant in People v Obadele, 58 Mich App 139; 227 NW2d 258 (1975), was arrested for carrying weapons in a car. At the station house, he was searched. The police found three vials in a pouch attached to his belt. One vial contained a controlled substance. While not a search incident to an arrest, the Court said the station house search "was a proper 'inventory search’ and the controlled substance should not have been suppressed”.
In People v Walker, 58 Mich App 519; 228 NW2d 443 (1975), the defendant was arrested on an outstanding nonsupport warrant. During the station house inventory search, the police noticed a piece of tinfoil in his hair. They took it, opened it up and found heroin.
On appeal, defendant argued that opening the packet was an illegal search. The Court said an inventory procedure "is designed to prevent the introduction of weapons and contraband * * * and is a protective measure for police and prisoner alike”. The Court said it "would be naive and pointless to assume that law enforcement officials may store an arrestee’s personal effects without first determining what it is they are inventorying”.
The defendant in People v Rivard, 59 Mich App 530; 230 NW2d 6 (1975), was arrested for armed robbery. During the inventory, the police noticed he was wearing a blue sapphire ring. The next day a detective reviewed a list of stolen property and realized that the ring could be connected with the robbery. He obtained it from defendant’s personal property.
Defendant moved to suppress the ring saying it was the result of an illegal search. The Court of Appeals rejected this argument:
"The item had remained in police custody after having been discovered when defendant deposited his personal belongings with police prior to being jailed. Defendant concedes that no warrant would have been required to seize the ring during the inventory. * * * Thus, a search warrant to again look at the ring, already in police custody, does not make sense. * * * [A]ny expectation of privacy with respect to that item had at least partially dissipated so that no reasonable expectation of privacy was breached by Detective Van Alstine taking a 'second look’ ”.
Even more to the point is United States v Edwards, 415 US 800; 94 S Ct 1234; 39 L Ed 2d 771 (1974), where articles of clothing were taken from the defendant ten hours after his arrest. The Court said "it is difficult to perceive what is unrea sonable about the police examining and holding as evidence those personal effects of the accused that they already have in their lawful custody as the result of a lawful arrest”. The Court found that the First Circuit "captured the essence of situations like this” in United States v. DeLeo, 422 F2d 487 (CA 1, 1970):
"While the legal arrest of a person should not destroy the privacy of his premises, it does — for at least reasonable time and to a reasonable extent — take his own privacy out of the realm of protection from police interest in weapons, means of escape, and evidence.”
Under the agreed facts of our case, it was reasonable for the officer to unfold what appeared to be a temporary driver’s license. The fulcrum of the investigation was a car theft ring to which each police discovery was firmly attached. The furtive behavior of defendant, the color and appearance of the piece of paper he was trying to hide, the stolen car and the disparity between driver’s license (Brooks) and registration (Benman) would have led reasonable persons even less highly trained than the officers to believe the folded paper was evidence of the crime. Under these circumstances, the contention of defendant that the unfolding constituted a "search” within an inventory search must be met. with the conclusion that it was not a search because there is no reasonable expectation of privacy in a temporary driver’s license, and even if wé were to hold it to have been a "search” it was reasonable.
However, the paper was properly admitted into evidence under at least two other theories offered by the people.
(1) It was reasonable to unfold the paper to determine what was being inventoried. (E.g., if it had been lost or misplaced, defendant could have claimed it was a negotiable instrument or something else of value.)
(2) It was reasonable to look in the folded paper for small but dangerous objects, for drugs, or for other contraband.
Under any theory here proposed, the judge did not err in ruling, after a suppression hearing, that the temporary driver’s license was admissible in evidence.
IV. Summary
The initial sequence of events culminated when defendant, another driver and a man in an automobile known to be stolen and under surveillance drove the same route to the same gas station and stopped. At this point, two Southfield police officers approached defendant and lawfully asked him to produce his driver’s license and automobile registration. MCL 257.311; MSA 9.2011 and MCL 257.223; MSA 9.1923. They were in different names. A check of the registration with the VIN in plain view on the dashboard revealed the same number — but a VIN visibly altered. The numbers were out of line. It is a misdemeanor to conceal or misrepresent the identity of a motor vehicle by using certain devices and it is prima facie evidence of such an offense to be in possession of a car with an altered identification number. The arrest of the defendant, whether it occurred at the gas station or at the police station, was valid. The Cadillac was properly seized incident to the arrest.
Although there is some question whether an arrest actually was made, at that time, we give defendant the benefit of his argument that he was in fact arrested. The officers or another expert could have crawled under the car and checked the VIN on the frame and engine. The car was driven instead to the police station.
The next sequence of events took place in the police station when an expert did in fact crawl under the automobile to see the VIN stamped on the underside. No entry of the car was necessary. There was no "search” needed to compare the dashboard VIN with those on the outside of the car but on the underside.
There was no reasonable expectation of privacy in the identification numbers and no unlawful intrusion to obtain them. Even if we had agreed with defendant that a search took place, it would have been permissible at the gas station and given the fact that the car was properly seized and transported "did not become less so at the police station”. (Zemke.) There was no invasion of a constitutionally protected area. The police at no time exceeded their authority.
When it was verified at the police station that the automobile was stolen, defendant was placed under formal arrest for car theft and the third sequence took place. The only question remaining was whether unfolding the temporary driver’s license in defendant’s left sock during the inventory search was technically a "search” within the valid inventory search so that a search warrant was required to unfold the paper. Under any of the proposed theories, defendant must fail. Again, no constitutionally protected area was invaded. There is no reasonable expectation of privacy in a temporary driver’s license, believed to be such when unfolded by an officer. It was obtained with no unlawful intrusion upon defendant’s person or protected property. The officer’s actions under these circumstances were reasonable. Further, the unfolding would have been lawful under either of the prosecutor’s other proffered theories.
When considering the boundaries of "unreasonable searches and seizures”, we constantly are faced with the conflict between the need to apply realistic standards of law enforcement and the need to protect citizens from unreasonable intrusions into their privacy.
Sometimes forgotten in debate is the word "unreasonable”. It means excessive, beyond a normal or proper limit. It means exceeding limits set by good judgment or fairness. In law, there can be no absolute definition of "unreasonable”. Each determination must be made within a specific context.
This being so, there is nothing in the circumstances of this case which compels a conclusion that an unreasonable search occurred. What was done was reasonable and within the limits set by good judgment and fairness.
The Court of Appeals is reversed and the conviction reinstated.
Williams, Fitzgerald, and Ryan, JJ., concurred with Coleman, C.J.
"The licensee shall have such license in his immediate possession at all times when driving a motor vehicle, and shall display the same upon demand of any uniformed police officer or field deputy or inspector or other duly authorized representative of the commissioner who shall identify himself as such.” MCL 257.311; MSA 9.2011.
"Every such registration certificate shall at all times be carried in the vehicle to which it refers or shall be carried by the person driving or in control of such vehicle who shall display the same upon demand of a police officer.” MCL 257.223; MSA 9.1923.
The car had been stolen from Mr. Robert Gorney, of Allen Park, Michigan, on February 7, 1972. Willie J. Benman testified that he had known defendant, that they had worked together at Chrysler and that Mr. Benman had loaned his car to defendant on occasion. The VIN on Mr. Benman’s 1969 Cadillac and his registration were the same as the false plate numbers on the dashboard of the stolen 1969 Cadillac.
"At the time of defendant’s arrest, the police knew that defendant was travelling in a group of cars which included a known stolen vehicle, the Mark IV. One of the officers testified that when he observed the Cadillac at the gas station, it appeared to him that two of the numbers on the VIN plate were out of line with the others. On the other hand, defendant presented proper identification and the car registration matched the plates and the VIN number. There is no identification in the record that the police knew that the Cadillac had been stolen or that the defendant had previously been involved with stolen cars. Under these circumstances it is clear that the police were acting on no more than mere suspicion in arresting the defendant.”
"Any person who shall conceal or misrepresent the identity of a motor vehicle or of any mechanical device, by removing or defacing the manufacturer’s serial number or the engine or motor number on such motor vehicle, or by replacing any part of such motor vehicle or mechanical device bearing the serial number or engine or motor number thereof if any, with a new part, upon which the proper serial number or engine or motor number has not been stamped, shall be guilty of a misdemeanor.
"In all prosecutions under this section, possession by any person of any motor vehicle, or of any mechanical device with the manufacturer’s serial number or the engine or motor number removed, defaced, destroyed or altered or with a part bearing such number or numbers replaced by one on which the proper number does not appear, shall be prima facie evidence of violation of the provisions of this section.” MCL 750.415; MSA 28.647.
As noted at p 258 of our brethren’s opinion, the "presence” requirement may be modified by the Legislature. It is not of constitutional dimension.
See People v Krontz, 50 Mich App 495; 213 NW2d 593 (1973); People v Oliver, 63 Mich App 509; 234 NW2d 679 (1975).
See People v Whalen, 390 Mich 672; 213 NW2d 116 (1973). Also see People v White, 392 Mich 404; 221 NW2d 357 (1974).
See United States v Grill, 484 F2d 990 (CA 5, 1973), cert den, 416 US 989 (1974).
See United States v Edwards, 415 US 800; 94 S Ct 1234; 39 L Ed 2d 771 (1974) (seizure of arrestee’s clothing the next day to search for paint particles).
People v Parisi, 393 Mich 31; 222 NW2d 757 (1974). | [
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Neff, J.
Plaintiff brought this suit under the Michigan Freedom of Information Act, MCL 15.231 et seq.; MSA 4.1801(1) et seq., seeking production of certain records from defendant’s Community and Economic Development Department relating to the Metropolitan Building, a vacant structure owned by defendant. Defendant appeals as of right from an order of the circuit court granting summary disposition in favor of plaintiff and ordering that defendant disclose to plaintiff all requested documents not previously disclosed. We affirm in part and remand this case to the trial court for further proceedings consistent with this opinion.
i
In October 1987, plaintiff’s group submitted an unsolicited proposal to renovate the Metropolitan Building. The proposal was not selected, and plaintiff thereafter sought all documents relating to the Metropolitan Building since January 1, 1986, including, inter alia, the official evaluation of the proposal submitted by plaintiff’s group, the proposal of the developer actually selected and desig nated by defendant, the official evaluation of the designated developer’s proposal, the letter of designation of the developer, the official recommendation from the development department concerning which proposal should be accepted, and documents regarding the radium contamination problem within the building.
After plaintiff initiated this action, defendant granted plaintiff’s request in part and denied it in part. Defendant claimed that the documents either had been disclosed or were exempt from disclosure pursuant to the foia. Plaintiff thereafter moved for summary disposition pursuant to MCR 2.116(C) (9) and (10), arguing that he is entitled to the documents requested, which he claimed were not exempt from disclosure.
Defendant also moved for summary disposition pursuant to MCR 2.116(C)(10), claiming that the requested records are exempt from disclosure under § 13(l)(j) of the foia, MCL 15.243(l)(j); MSA 4.1801(13)(l)(j). Defendant also claimed that other exemptions, including those contained in subsections 1(a), (h), and (n) of § 13 of the foia also applied. Section 13 of the foia provides in pertinent part:
(1) A public body may exempt from disclosure as a public record under this act:
(a) Information of a personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy.
(h) Information or records subject to the attorney-client privilege.
(j) A bid or proposal by a person to enter into a contract or agreement, until the time for the public opening of bids or proposals, or if a public opening is not to be conducted, until the time for the receipt of bids or proposals has expired.
(n) Communications and notes within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to a final agency determination of policy or action. This exemption shall not apply unless the public body shows that in the particular instance the public interest in encouraging frank communications between officials and employees of public bodies clearly outweighs the public interest in disclosure. This exemption does not constitute an exemption under state law for purposes of section 8(h) of Act No. 267 of the Public Acts of 1976, being section 15.268 of the Michigan Compiled Laws. As used in this subdivision, "determination of policy or action” includes a determination relating to collective bargaining, unless the public record is otherwise required to be made available under Act No. 336 of the Public Acts of 1947, as amended, being sections 423.201 to 423.216 of the Michigan Compiled Laws.
Defendant further claimed that it was relieved of its obligation to provide the records under the judicially created "mootness doctrine” because plaintiff had received copies of the requested documents from other public bodies.
At a hearing on the motions held on June 6, 1990, defendant provided the trial court with affidavits in support of its motion and with copies of the requested documents. The court stated that it would review all the documents submitted.
At a hearing held on June 20, 1990, the court rendered its decision from the bench that defendant must disclose the documents requested by plaintiff. The court found, without further com ment, that defendant’s arguments with regard to the exemptions contained in subsections 1(a), (h), and (n) were without merit. The court further found that defendant’s strongest argument was that the exemption contained in subsection l(j) applied, but it found that exemption inapplicable.
The trial court thereafter entered an order, consistent with its findings from the bench, granting plaintiff’s motion for summary disposition with regard to disclosure of the requested documents, but denying plaintiff’s motion for an award of attorney fees, costs, and damages. It is from this order that defendant appeals as of right.
On the same date, the trial court entered an order denying defendant’s motion for summary disposition. The court also entered an order granting defendant’s motion to stay all proceedings pending appeal. The court ordered that all requested but undisclosed documents be kept "under seal” for purposes of appeal.
n
Defendant first claims that the trial court’s decision does not comport with the standards and procedures set forth in Evening News Ass’n v City of Troy, 417 Mich 481; 339 NW2d 421 (1983). We disagree.
The foia, MCL 15.231 et seq.; MSA 4.1801(1) et seq., declares the public policy of this state to be that all persons are entitled to complete information regarding the affairs of government so that they may fully participate in the democratic process. MCL 15.231(2); MSA 4.1801(1)(2); Swickard v Wayne Co Medical Examiner, 438 Mich 536, 543; 475 NW2d 304 (1991). Under the foia, a public body must disclose all public records that are not specifically exempt under the act. MCL 15.233(1); MSA 4.1801(3)(1); Hagen v Dep’t of Education, 431 Mich 118, 123; 427 NW2d 879 (1988). The thrust of the foia is a policy of full and complete disclosure. Id.
In Post-Newsweek Stations, Michigan, Inc v Detroit, 179 Mich App 331, 335-336; 445 NW2d 529 (1989), a panel of this Court succinctly summarized the standards enunciated in the Evening News Ass’n case:
In Evening New [sic] Ass’n, supra, the Supreme Court held that in an foia action the burden of proving the propriety of nondisclosure is on the public body asserting that the requested material falls within the foia exemptions. In order to meet this burden, the public body should provide a complete particularized justification for the claimed exemptions. The Evening News Court also held that a trial court may not make conclusory or "generic determinations” when deciding whether the claimed exemptions are justified. Instead, before determining that the defendant sustained its claim of exemption, the court must specifically find that the particular sections of the public record requested by the plaintiff would for particular reasons fall within the claimed exemptions. See 417 Mich 505. In order to meet the particularization requirements, the following rules should be used in analyzing a claim of exemption from disclosure under the foia:
1. The burden of proof is on the party claiming exemption from disclosure. MCL 15.240(1); MSA 4.1801(10X1).
2. Exemptions must be interpreted narrowly. Vaughn v Rosen, 157 US App DC 340, 343; 484 F2d 820 (1973).
3. "[T]he public body shall separate the exempt and nonexempt material and make the nonexempt material available for examination and copying.” MCL 15.244(1); MSA 4.1801(14)(1); Vaughn v Rosen, 157 US App DC 345.
4. "[Detailed affidavits describing the matters withheld” must be supplied by the agency. Ray v Turner, 190 US App DC 290, 317; 587 F2d 1187 (1978).
5. Justification of exemption must be more than "conclusory”, i.e., simple repetition of statutory language. A bill of particulars is in order. Justification must indicate factually how a particular document, or category of documents, interferes with law enforcement proceedings. Campbell v Dep’t of Health & Human Services, 221 US App DC 1, 4-6, 10-11; 682 F2d 256 (1982); Vaughn v Rosen, 157 US App DC 347.
6. The mere showing of a direct relationship between records sought and an investigation is inadequate. Campbell v Dep’t of Health & Human Services, 221 US App DC 8-9 [682 F2d 256 (1982)]. [417 Mich 503.]
In determining whether a particularized justification for exemption exists, the trial court should employ a three-step procedure:
1. The court should receive a complete particularized justification as set forth in the six rules above . . .; or
2. the court should conduct a hearing in camera based on de novo review to determine whether complete particularized justification pursuant to the six rules exists, Vaughn v Rosen, supra, pp 346-348; Ray v Turner, supra, p 311; or
3. the court can consider "allowing plaintiffs counsel to have access to the contested documents in camera under special agreement 'whenever possible.’ ” Ray v Turner, supra, p 308, fn 24, and p 315. [Evening News Ass’n, supra, p 516.]
The Court in Evening News Ass’n, supra, p 516, further explained the three-step procedure:
The objective, of course, is to secure disclosure of all pertinent information that is not exempt. If the government and the court are mutually aware of the six rules and the government is prepared to act accordingly, the matter should normally be resolved under the first step. Where the government for whatever reason is reluctant or antagonistic, or the court is in doubt, the trial court may have to proceed to the second step. If the matter is relatively clear and not too complex, the court, or the court with a master, may, within acceptable expenditure of judicial energy, be able to resolve the matter in camera. However, if the matter is not that clear or simple, the court may have to consider employment of plaintiffs counsel under special agreement in order to resolve the matter.
Thus, according to the language of the Court in Evening News Ass’n, the trial court normally should resolve the issue under step one, but may proceed to steps two and three where necessary.
Defendant claims that it complied with the third rule enunciated in Evening News Ass’n because it separated the exempt and nonexempt materials and made the nonexempt material available to plaintiff, and because, on June 6, 1990, it tendered the exempt documents for an in camera inspection. Defendant also claims that it complied with the rule that requires detailed affidavits describing the matters withheld be supplied by the agency when it filed with the trial court an affidavit of Rudeine Clark regarding the documents claimed to fall under the exemption contained in subsection l(j) of § 13 of the foia and when it filed with the court an affidavit of Alfreda V. Montgomery regarding the documents claimed to be exempt under subsections 1(a), (h), and (n) of § 13 of the foia.
Defendant claims that the trial court did not comply with the rules because it failed to conduct an in camera review and failed to make particularized findings of fact regarding the contested documents. We disagree. First, under Evening News Ass’n, the court is not required to proceed to an in camera review and normally should resolve the dispute under step one. Second, it is clear from the court’s comments at the June 6, 1990, hearing that the court was going to conduct an in camera review of the contested documents, even though it was not required to do so. Third, the court’s findings on the record at the June 20, 1990, hearing constitute particularized findings of fact, at least with regard to defendant’s claimed exemption under subsection l(j) of § 13 of the foia.
hi
Defendant next claims that the trial court’s interpretation of subsection l(j) of § 13 of the foia is in contravention of the evidence presented to the court. We disagree.
Defendant claims that that subsection should be interpreted to exempt the contested documents until after the signing of a purchase agreement for the Metropolitan Building. It claims that if the documents are released before the execution of the purchase agreement, the "potential sale and development of this and other government-owned property throughout the state will be chilled.”
Plaintiff argues that the Legislature’s intent is that subsection l(j) of § 13 of the foia applies to a competitive bidding process so that one party may not obtain the bid or proposal of a second party in order to devise ways of gaining a competitive advantage over the second party before the bidding process is over. Plaintiff claims that, because the proposal of the currently designated developer was not submitted under a competitive bidding situation, defendant does not have a viable defense under this exemption.
The trial court found that the language of subsection l(j) of § 13 of the foia was inapplicable because it construed the language of that subsection to apply only to solicited bids. The court further found that, even giving defendant the benefit of the doubt that the subsection applies to this case, the time for the receipt of bids expired when defendant chose a designated developer.
We find that the trial court’s construction of the statutory language is correct and is consistent with the rule in Evening News Ass% supra, p 503, that exemptions be narrowly interpreted. Accordingly, defendant did not meet its burden of proving that the documents requested are exempt under subsection l(j) of § 13 of the foia. Had the Legislature intended that documents remain exempt from disclosure until the signing of a purchase agreement, it could have specifically so provided.
Defendant also claims that summary disposition was improperly granted because plaintiff chose not to file a counter-affidavit to that of Rudeine Clark. However, the burden of proof is on the party claiming the exemption.
IV
Defendant claims that certain contested documents are exempt from disclosure under subsections 1(a), (h), and (n) of § 13 of the foia and under the judicially created "mootness doctrine.” It claims that it provided particularized justification for the statutory exemptions through the affidavit of Alfreda V. Montgomery. It also claims that, because plaintiff has already obtained copies of the challenged documents as a result of foia requests to other public bodies, his claims are moot.
Plaintiff claims that the contested documents are not exempt from disclosure pursuant to the statutory exemptions and that his claims are not moot, because he has received from other public bodies only a tiny fraction of the documents he requested from defendant.
As noted above, the trial court gave no reasons for its finding that there was no merit to defendant’s claims of exemption from disclosure contained in subsections 1(a), (h), and (n) of § 13 of the foia. The court also made no finding at all with regard to defendant’s assertion that plaintiffs claims were moot. Accordingly, we remand this case to the trial court for further factual findings with regard to these claimed exemptions.
The trial court’s decision with regard to its interpretation and application of subsection l(j) of § 13 of the foia is affirmed, but we remand the case to the trial court for further factual findings regarding defendant’s other claimed exemptions from disclosure. We do not retain jurisdiction. | [
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J. W. Fitzgerald, J.
Edmardo J. Tomei appeals as of right from a circuit court order affirming the decision of the Michigan Employment Security Commission Board of Review that held that he was ineligible to receive unemployment benefits under MCL 421.29(l)(a); MSA 17.531(l)(a) because he voluntarily left his employment with General Motors Corporation without good cause attributable to his employer. We reverse.
Claimant worked for gmc at its boc Flint body assembly plant from March 6, 1968, until December 18, 1987. In 1985, claimant and other employees were told that the plant would be closing. According to claimant, gmc offered him three choices: to transfer to a Buick plant in the Flint area, to go to the Buick plant at a later time, or to stay at the boc plant. He chose to stay in the hopes that the plant would remain open. He was afraid that, because of his low seniority (seventeen years) and his age (sixty-four years), he would be either bumped or forced to retire at age sixty-five if he transferred to the Buick plant. Claimant said that in 1984 he had communicated to gmc that he wanted to work until age seventy. When the plant closed, claimant was sixty-six years old and his retirement took effect.
According to the sole witness for gmc, the personnel clerk for hourly workers at the boc plant, claimant was given three choices concerning his employment. First, claimant could have applied in 1983 and 1984 to go to the Buick plant. She said that even with a seniority date of 1968 (claimant’s year of hire), he would have been transferred to Buick sometime in 1985 or 1986, and that the union was aware of this fact. If claimant had applied later, he would still have been transferred to Buick eventually. At the time of the May 12, 1988, hearing, people with seniority dates of 1969 and 1970, i.e., people with less seniority than claimant, were being transferred. Second, claimant could choose to be laid off for up to two years, during which time he would receive benefits and be placed in an area-wide hiring pool. She conceded that gmc had hired or recalled only a "couple” of people from that hiring pool. More importantly, had claimant chosen to be laid off, he could nevertheless have retired at the end of two years, although the witness did not know whether claim ant’s pension would have been the same under such circumstances. Third, claimant could choose to retire when the plant closed.
Claimant testified that the consequences of the available options were not fully explained by gmc. He had not understood that an early application for transfer to Buick would have resulted in acceptance by gmc. Claimant said that if he had opted for layoff when the plant closed, he would have been sixty-eight years old at the end of that two-year layoff period, and his opportunities for further employment would diminish correspondingly because of his age. Further, he had understood that if he opted for layoff, he would have to be rehired by gmc for at least one day following any layoff in order to qualify for retirement.
The mesc referee concluded that claimant was not entitled to unemployment benefits because he had been given alternatives that a reasonable and prudent employee would accept, and that his retirement, i.e., exercise of the third option, was therefore voluntary. In a split decision, the board of review affirmed on the ground that the referee’s decision was in conformity with the law and the facts.
Claimant appealed the review board’s decision to the circuit court, which also affirmed. The court concluded that claimant’s decision to stay at the plant and retire was a conscious, voluntary decision, although not a wise one, and that he was therefore precluded from receiving unemployment compensation benefits. Claimant appeals, and we reverse on the ground that his separation from employment was involuntary rather than voluntary.
A reviewing court may reverse an mesc decision only if the decision is contrary to law or if it is not supported by competent, material, and substantial evidence on the whole record. MCL 421.38(1); MSA 17.540(1); Schultz v Oakland Co, 187 Mich App 96, 102; 466 NW2d 374 (1991).
The purpose of the Michigan Employment Security Act, MCL 421.1 et seq.; MSA 17.501 et seq., a remedial act, is to safeguard the general welfare through the dispensation of benefits intended to ameliorate the disastrous effects of involuntary unemployment. Accordingly, the provisions of the act are liberally construed; disqualification provisions, however, are to be narrowly construed. Schultz, 102-103. Section 29(l)(a), the provision at issue in this case, is a disqualification provision and provides in part:
An individual shall be disqualified for [unemployment] benefits in the following cases in which the individual:
(a) Left work voluntarily without good cause attributable to the employer or employing unit [MCL 421.29(l)(a); MSA 17.531(l)(a).]
Although disqualification provisions are to be narrowly construed, the state clearly has an interest in reserving unemployment benefits for those who are unemployed because of forces beyond their control. Parks v Employment Security Comm, 427 Mich 224; 398 NW2d 275 (1986).
We first address claimant’s contention that gmc should bear the burden of proving disqualification under § 29(l)(a) where a plant permanently closes and the employer claims that the employee could have continued work at another facility rather than retire. In this regard, claimant argues that because the employer, not the employee, knows its manpower requirements and has access to all employment records, it is in a better position to establish whether a reasonable choice or alterna tive was available to the employee. Gmc, on the other hand, argues that although the employer usually bears the burden of establishing a former employee’s disqualification from receiving unemployment benefits in misconduct cases, "voluntariness” cases require inquiry into a claimant’s behavior in and reasons for terminating employment, and that the claimant should bear the burden of proof because such information lies within the claimant’s exclusive knowledge.
This Court has held that an employer does not automatically bear the burden of proof in cases involving employee disqualification for unemployment benefits. Cooper v University of Michigan, 100 Mich App 99, 103; 298 NW2d 677 (1980). The Cooper Court distinguished between disqualification cases turning on the "good cause” conduct of the claimant and those in which the "conduct, knowledge, reasoning, and control of the employer is critical.” Id. The burden of proof is on the employer:
One: When the employee is to be disqualified for benefits due to the employer’s [sic] discharge for misconduct. . . . See MCL 421.29(l)(b); MSA 17.531(l)(b). Two: When the employee is to be disqualified for failure to accept "suitable” work offered by the employer. . . . See MCL 421.29(l)(e); MSA 17.531(l)(e). Three: When an employee is to be disqualified because his unemployment is due to a labor dispute in progress. . . . See MCL 421.29(8); MSA 17.531(8).
. . . However, potential disqualification for benefits under MCL 421.29(l)(a); MSA 17.531(l)(a), as here, requires inquiry into whether plaintiff’s behavior in terminating employment was voluntary and plaintiff’s reasons for doing so, the answers to these questions being within the exclusive knowledge of the claimant [Id.; emphasis in original; citations omitted.]
Strict adherence to Cooper places on claimant the burden of proof with regard to the voluntariness of his decision to retire. We are mindful of the current economic climate of this state and the resulting frequency of plant closings. The very frequency of such events requires great numbers of employees such as claimant to confront the likelihood and terms of any future employment with their employers. Employers in these situations have a duty to clearly and accurately relay to their employees the fact of the imminency of a plant closing, what their employment choices are, and adequate, truthful information concerning the consequences of each choice. For where, as here, employees are forced to rely on information from their employers to make informed employment decisions, no subsequent decision concerning whether a claimant voluntarily left employment may be properly addressed before the employer demonstrates that the options it offered to the claimant were not unreasonable, untenable, or illusory. Such information clearly lies within the knowledge, reasoning, and control of the employer. Cf. Cooper, 103.
Therefore, we hold that in plant-closing cases, the burden of proof in demonstrating the voluntariness of a claimant’s decision to leave employment under § 29(l)(a) first falls on the employer to demonstrate that the choices it offered its employee were reasonable, viable, and clearly communicated to the employee. If the employer fails in carrying its burden such that a clearly communicated offer of viable, reasonable employment choices and their consequences are not demonstrated, the issue of voluntariness must be resolved in the claimant’s favor. However, if the employer successfully carries this burden, the burden then shifts to the claimant to demonstrate that the decision to leave work was involuntary in order to qualify for unemployment benefits. This holding is in keeping with both the purpose of the act and a narrow construction of disqualifying provisions. Schultz, supra.
We next address the issue whether an employee who faced the closing of a plant, elected the option to stay at the plant until it closed and then elected retirement rather than layoff voluntarily ceased his employment as a matter of law.
This Court has previously held that the Legislature’s use of the word "voluntary” is clear. It connotes a choice between alternatives that ordinary people would find reasonable, and has been defined as unrestrained, volitional, freely chosen, or wilful action. Clarke v North Detroit General Hosp, 179 Mich App 511, 515-516; 446 NW2d 493 (1989), aff'd 437 Mich 280, 287; 470 NW2d 393 (1991).
Applying the word "voluntary” to the facts of this case, we conclude that claimant did not leave work voluntarily. Once the boc plant closing became a reality, claimant was not faced with a choice between reasonable alternatives. The hourly personnel clerk testified that gmc began accepting applications for transfers to the Buick plant in 1983 and 1984. Yet according to the record before us, the announcement that the plant would close was not made until 1985. The actual transfers did not begin until 1985 and 1986, and the Flint boc plant did not close until nearly the end of 1987. Claimant testified that it was not clear that any application to transfer to Buick would actually be accepted, he feared the likelihood of being laid off because of his age and low seniority even if he was transferred, and he understood that a layoff would disqualify him from later retirement unless he was rehired by gmc for at least one day.
In short, claimant was forced to choose between untenable options in the face of an indeterminate future. Although employment decisions are difficult under the best of circumstances, the mystery and confusion surrounding the decisions claimant had to make rendered it nearly impossible to make an informed, sensible choice. If gmc imparted pertinent, practical information affecting claimant’s decision, the record before us does not reflect it.
There is little doubt that claimant wished to continue working until he reached the age of seventy. Even after the plant had officially closed, he worked until December 18, 1987, sweeping and cleaning, and applied to continue working after the first of the year. Under these circumstances, his decision to retire rather than accept a two-year layoff when his plant closed was not a voluntary severance of employment, and the circuit court erred as a matter of law in holding the contrary.
Accordingly, the circuit court’s order affirming the mesc decision affirming the referee’s determination that claimant was disqualified for unemployment benefits is reversed._
The question whether an employee left work "voluntarily” is a matter of law. Clarke v North Detroit General Hosp, 179 Mich App 511, 515; 446 NW2d 493 (1989), aff'd 437 Mich 280; 470 NW2d 393 (1991).
We find the facts of this case to be distinguishable from those of Coleman v Employment Security Comm, an unpublished opinion per curiam of this Court, decided March 21, 1990 (Docket No. 117120). To the extent that the facts are similar, we disagree with that decision. We are not bound to treat Coleman as precedent because it is an unpublished opinion. | [
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Neff, J.
This case deals with an allegation that defendant bank violated a duty to negotiate a check according to a purported restrictive indorsement on the back of the check. Plaintiff appeals as of right from an order of the circuit court granting summary disposition in favor of defendant Manufacturers National Bank of Detroit on the ground that plaintiff had failed to state a claim upon which relief could be granted. MCR 2.116(C)(8). We affirm.
i
On May 22, 1990, plaintiff filed its original complaint. Plaintiff amended its complaint on June 8, 1990, naming as defendants Manufacturers Bank, Madias Brothers, Inc., Nella and Chutry Booth and Randy and Herbert Bidlofsky, doing business as Ultimate Construction. According to allegations in the amended complaint, plaintiff had entered into a joint venture agreement with Ultimate Construction for the purpose of doing fire damage repairs. One of the repair jobs to be performed was on property owned by the Booths and Madias Brothers, and insured by Allstate Insurance Co.
Plaintiff alleged that it had advanced funds to Ultimate Construction to pay for the repairs on that property and that Ultimate had promised that it would cause plaintiff’s name to appear on checks received from Allstate. However, according to the complaint, Ultimate failed to cause plaintiff’s name to appear on the check, and, instead, took the proceeds of the check for itself.
Two checks were involved. The first, for $20,000, was deposited in the account of Levin & Levin, fire adjusters hired by the Booths and Ultimate Construction. That check was not at issue below and is not at issue on appeal.
It is the second check, for $28,964.94, that is the subject of this appeal. Plaintiff alleged that the check was deposited into the account of Ultimate Construction contrary to a restrictive indorsement placed on the check that directed that the check be deposited only to plaintiff’s account at National Bank of Detroit. Plaintiff further alleged that the negotiation and payment of the check by defendant bank to Ultimate Construction was in violation of a duty imposed on the bank by MCL 440.3205; MSA 19.3205; MCL 440.3206; MSA 19.3206. Those statutes are part of Michigan’s version of the Uniform Commercial Code dealing with restrictive indorsements.
Defendant bank brought a motion for summary disposition, asserting that plaintiff was not a payee of the check and that the check did not bear plaintiff’s indorsement in any legally recognizable form.
The check is made out to "Nella & Chutry Booth and Ultimate Construction and Madias Bros., Inc. and Levin & Levin.” On the back of the check are several writings. At the top of the check, the following appears: "For Deposit Only To Acct #0051255-04.” According to paragraph nine of the amended complaint, that refers to plaintiffs account at National Bank of Detroit. Plaintiff contends that that writing constitutes a restrictive indorsement and that defendant bank had a duty to negotiate the check in compliance with it. That writing is followed by a series of signatures in the following order: Ultimate Const Co, Randy Bidlofsky, C. L. Booth, Chutry Booth, Madias Brothers, Inc. (by Nick Madias, President), Levin & Levin. At the bottom of the signatures, the following appears:
PAY TO THE ORDER OF Manufacturers National Bank of Detroit SOUTHFIELD, MI 48075
07200338
FOR DEPOSIT ONLY
Ultimate Insurance Repair or Construction 1034104685
Defendant bank argued that the writing at the top of the back of the check, containing only an account number without stating in which bank the account exists, did not sufficiently establish plaintiffs identity so as to constitute an indorsement. Defendant bank further argued that even if the writing constituted an indorsement, it was ineffective because the check had to be indorsed by all the payees before plaintiff could claim by indorsement, and that, from the order in which the writings appear on the check, the indorsements of the payees came after the purported restrictive indorsement of plaintiff.
On July 27, 1990, defendant bank’s summary disposition motion was heard. The hearing was adjourned to allow the parties to file supplemental briefs. On September 7, 1990, the hearing continued. At that hearing, defendant bank argued that even if it had violated sections of the ucc, plaintiff had no standing to bring an action with regard to the check because it was not a payee. Plaintiff did not offer any oral argument, but told the court that it relied on its written response. In its written response, plaintiff argued that the bank had a statutory duty to pay the check consistent with plaintiff’s restrictive indorsement or, at the least, to make inquiry because of the competing restrictive indorsements found at the top and bottom of the back of the check. Therefore, asserted plaintiff, it was entitled to summary disposition.
The trial court took the matter under advisement. On October 10, 1990, the court issued an opinion and order granting summary disposition to defendant bank. The court ruled that plaintiff had no enforceable claim against defendant bank, saying:
It is clear as a matter of law that as a non-party to the instrument the Plaintiffs rights are subordinate to the parties, thereto. The purported restrictive endorsement preceeds [sic] the signature endorsements, valid or not, of the parties to the instrument. Since no interest could vest in Plaintiff pursuant to the UCC until after those party endorsements, the initial "restrictive endorsement” had no legal force or effect.
Plaintiff appeals from that ruling.
ii
Summary disposition with regard to a claim may be granted on the ground that the opposing party "has failed to state a claim on which relief can be granted.” MCR 2.116(C)(8). A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone. Formall, Inc v Community National Bank of Pontiac, 166 Mich App 772, 777; 421 NW2d 289 (1988). All factual allegations in support of the claim are accepted as true, as well as any reasonable inferences or conclusions that can be drawn from the facts. Kauffman v Shefman, 169 Mich App 829, 833; 426 NW2d 819 (1988). The motion should be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery. Wade v Dep’t of Corrections, 439 Mich 158, 163; 483 NW2d 26 (1992); Scameheorn v Bucks, 167 Mich App 302, 306; 421 NW2d 918 (1988).
Plaintiff contends that defendant bank, as the depository bank, had a duty to comply with the purported restrictive indorsement at the top of the check. A depository bank is "the first bank to which an item is transferred for collection even though it is also the payor bank.” MCL 440.4105(a); MSA 19.4105(a). An indorsement is restrictive where it "includes the words 'for collection’, 'for deposit’, 'pay any bank’, or like terms signifying a purpose of deposit or collection.” MCL 440.3205(c); MSA 19.3205(c). A depository bank is required to pay an instrument consistent with a restrictive indorsement. MCL 440.3206(4); MSA 19.3206(4).
However, plaintiff does not allege in its complaint or explain in its appellate brief why its purported indorsement, i.e., the one appearing at the top of the back of the check, should have been honored instead of the restrictive indorsement that follows the last signature on the back of the check. More importantly, plaintiff does not allege or explain by what right it may direct how the proceeds of a check to which it is not a payee may be disbursed.
The check at issue was made out to several payees conjunctively, none of whom was plaintiff. MCL 440.3116; MSA 19.3116 provides as follows:
An instrument payable to the order of 2 or more persons
(a) if in the alternative is payable to any one of them and may be negotiated, discharged or enforced by any of them who has possession of it;
(b) if not in the alternative is payable to all of them and may be negotiated, discharged or enforced only by all of them.
MCL 440.3202(2); MSA 19.3202(2) provides that "[a]n indorsement must be written by or on behalf of the holder.” "Thus, in the case of order instruments, only the payee or one who signs on his behalf can make the first effective indorsement and negotiate the instrument.” White & Summers, Uniform Commercial Code (3d ed), § 13-9, p 562.
Because plaintiff is not a payee of the check, it has the right to negotiate the check only if it is a holder. MCL 440.3301; MSA 19.3301. A holder is a person in possession of an instrument issued or indorsed to him or to bearer or in blank. MCL 440.1201(20); MSA 19.1201(20). The check was not issued or indorsed to plaintiff or to bearer, so plaintiff can negotiate the check only if it is in possession of the check after it is indorsed in blank. A blank indorsement is one that "specifies no particular indorsee and may consist of a mere signature.” MCL 440.3204(2); MSA 19.3204(2). Thus, plaintiff could not become a holder with the right to negotiate the check until it had been indorsed by all the named payees.
It is apparent from the back of the check that plaintiffs purported restrictive indorsement was placed on the check before any of the payees indorsed it. Therefore, regardless of whether defendant bank had any statutory duty to comply with the purported restrictive indorsement of plaintiff instead of the one directing payment to the account of Ultimate Construction, plaintiff, not being a payee or a holder, has no right with regard to the check upon which to base a claim.
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Per Curiam.
Plaintiff, Michigan Basic Property Insurance Association, appeals from a circuit court order awarding $59,968.75 in mediation sanctions to defendants, Ervin Hackert, Hackert Furniture Distributing Company, Inc., and Furniture Mart, Inc. Plaintiff asserts that the trial court erred in awarding attorney fees for services that were not necessitated by its rejection of the mediation evaluation. It also contends that the $125 hourly fee used by the trial court to calculate attorney fees was too high. Defendants cross appeal, arguing that the $125 hourly fee was too low. We affirm.
In 1987, a fire destroyed the Williams Distributing Building in Grand Rapids. Plaintiff, as insurer of the building, paid Williams Distributing Company $418,521 for the damage. Defendants had sublet part of the building and insured their property through Auto-Owners Insurance Company. Auto-Owners initially paid defendants approximately $200,000; however, it ceased payments after its investigation indicated that defendants had intentionally started the fire and committed fraud.
Plaintiff filed this suit seeking to recover the funds it paid to Williams Distributing. The case was consolidated with a suit which Auto-Owners brought against defendants. The latter action sought return of the money already paid to defendants under their insurance policy with Auto-Owners and a declaratory judgment that the insurer had no liability to defendants. Both plaintiff and Auto-Owners alleged that defendants intentionally set the fire. In addition, Auto-Owners claimed fraud.
Prior to trial, the consolidated cases went to mediation. MCR 2.403. The mediation panel returned a unanimous "no cause” evaluation on both claims. Plaintiff and Auto-Owners rejected the evaluation. Defendants accepted.
At trial, the parties presented twenty-five witnesses over a thirty-three-day period. The jury found that, while the fire was caused by arson, defendants were not the arsonist nor were they in concert with him. Thus, plaintiff was not entitled to damages from defendants. However, the jury concluded that defendants had defrauded Auto-Owners and awarded it $202,095.
Following trial, defendants filed a motion for mediation sanctions seeking costs and attorney fees from plaintiff under MCR 2.403(O)(6). Defendants sought $102,375 in attorney fees for 682.50 hours spent on the case at $150 per hour. Plaintiff countered that it was responsible to pay attorneys fees for only three hours’ worth of defendants’ attorney’s work. The balance of defendants’ preparation and trial time, it contended, was spent either exclusively on Auto-Owner’s case or on the two cases jointly.
The trial judge ruled that defendants were not entitled to fees for hours spent prior to the notice of plaintiff’s rejection of the mediation evaluation. However, he rejected plaintiff’s contention that only those hours attributable exclusively to plaintiff’s case were recoverable. Rather, he included hours that were necessary to defend against plaintiff’s claim, even if spent defending also against Auto-Owners’ claims. The judge recognized that the defenses overlapped considerably and that the majority of the testimony presented by Auto-Owners was important to plaintiff’s case.
The judge found that six of the twenty-five witnesses presented at trial were not necessary to plaintiff’s case. He noted that plaintiff had not even questioned the six witnesses. Accordingly, he reduced the number of hours otherwise recoverable under MCR 2.403 by twenty-four percent. The judge recognized that this means of apportioning the hours did not conform to any exact science. Nonetheless, he believed that the method fairly determined how much of the trial was attributable to plaintiffs rejection of the mediation award.
As to the hourly rate, the judge commented that defendants’ attorney had considerable expertise in defending insureds’ interests. He could undoubtedly command a $150 per hour fee in the eastern part of the state. However, the judge deemed a $125 per hour rate more appropriate in Kent County; The final attorney fees award totaled $59,968.75.
We will uphold an award of attorney fees undgr MCR 2.403 absent an abuse of discretion. Jernigan v General Motors Corp, 180 Mich App 575, 587; 447 NW2d 822 (1989). The trial court’s decision is an abuse of discretion only if grossly violative of fact and logic. Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959).
Under MCR 2.403, a party which rejects a mediation evaluation must pay the opposing party’s actual costs, unless it obtains a verdict more favorable than the evaluation. MCR 2.403(O)(l). "Actual costs” include
a reasonable attorney fee based on a reasonable hourly or daily rate as determined by the trial judge for services necessitated by the rejection of the mediation evaluation. [MCR 2.403(0X6).]
Interpretation of a court rule is subject to the same principles which govern statutory construction. Taylor v Anesthesia Associates of Muskegon, PC, 179 Mich App 384, 386; 445 NW2d 525 (1989). The primary goal of both is to ascertain and give effect to the intent of the Legislature. Lorencz v Ford Motor Co, 187 Mich App 63, 68-69; 466 NW2d 346 (1991), lv gtd 437 Mich 1036 (1991). The overall purpose of the mediation rule is to encourage settlement and deter protracted litigation. The purpose behind the mediation sanction rule is to place the burden of litigation costs upon the party which requires a trial by rejecting a proposed mediation award. Warren v Pickering, 192 Mich App 153; 480 NW2d 306 (1991); Bien v Venticinque, 151 Mich App 229, 232; 390 NW2d 702 (1986).
Plaintiff urges interpretation of the "necessitated by the rejection” language to allow attorney fees only where they could have been avoided had the rejecting party accepted the mediation evaluation. In this case, plaintiff insists that its rejection of the evaluation did not "necessitate” defendants’ attorney fees; defendants would have been obliged to present essentially the same defense in response to the suit by Auto-Owners even if plaintiff were no longer a party to the suit.
Adoption of the interpretation urged by plaintiff would frustrate the purpose of the statute. Indeed, under plaintiff’s interpretation, a winning party would be unable to recover its attorney fees in cases where it was facing multiple opponents with identical or overlapping defenses. At a motion for sanctions, each loser would assert that the winner would have incurred the same expenses in defending against the others had the loser accepted mediation. The winning party would end up bearing the burden of its litigation costs, and the sanctions rule would provide no deterrent to protracted litigation.
We agree with Judge Mackenzie that the phrase "necessitated by the rejection” was intended as a temporal demarcation to permit recovery of reasonable attorney fees incurred after mediation is rejected, not before. Maple Hill Apart ment Co v Stine (On Remand), 147 Mich App 687, 695-696; 382 NW2d 849 (1985) (partial dissent by Mackenzie, J.). Judge Mackenzie wrote:
This construction is borne out by the Committee Notes accompanying GCR 1963, 316 [the predecessor rule to MCR 2.403]. There, the staff explains that under the rule’s definition of "actual costs”, "[o]nly costs made necessary by the rejection of the evaluation (i.e., post-mediation costs) are recoverable”. [Emphasis added. Id., 696.]
In the instant case, the trial court properly excluded the fees defendants initially claimed for hours spent prior to plaintiffs rejection of the mediation evaluation. Moreover, it did not abuse its discretion in determining the number of hours defendants’ attorney spent defending after plaintiff rejected the evaluation. As plaintiff concedes in its brief, much of Auto-Owners’ proofs was favorable to plaintiff. Thus, the trial court properly exercised its judgment in holding plaintiff accountable for the hours when Auto-Owners was examining some of its important witnesses.
Further, we find no abuse of discretion in the judge’s finding that twenty-four percent of the witnesses were unnecessary to plaintiffs case. Plaintiff should not be forced to pay for litigation hours expended through no fault of its own. Bien, 232. We agree with the trial judge that there is no exact science for determining which witnesses are unnecessary or important to which parties. The method used by the judge was reasonable in this case and should be affirmed. Spalding, 384-385.
Lastly, the judge did not abuse his discretion in reaching a $125 per hour figure for attorney fees. Wood v DAIIE, 413 Mich 573, 588; 321 NW2d 653 (1982); Temple v Kelel Distributing Co, Inc, 183 Mich App 326, 333; 454 NW2d 610 (1990). Contrary to plaintiffs suggestion, the judge was not precluded from considering expenses incurred by defendants’ attorney when determining a reasonable attorney fee. Id.
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Per Curiam.
Defendant Jeifery Councell pleaded guilty to a charge of malicious destruction of property over $100. MCL 750.377a; MSA 28.609(1). On March 2, 1990, defendant was sentenced to four years’ probation. He subsequently refused to sign the probation order because it required him to obtain approval from the probation department before he could see his fiancée. Defendant also refused to make required restitution of $300, claiming that the vehicle he had damaged was not worth that much. On March 9, 1990, he was again brought before the court and was sentenced to a prison term of thirty to forty-eight months. Defendant appeals and we reverse.
The essential question presented by this appeal is whether, under these facts, the trial court had authority to sentence defendant to prison after having earlier sentenced him to probation. We find no such authority.
We note initially that the prison term imposed upon defendant is not justifiable as a valid modification of an existing sentence. Once a sentence has been imposed, the trial court’s ability to alter it is severely limited. MCR 6.429(A) provides that "[t]he court may correct an invalid sentence, but the court may not modify a valid sentence after it has been imposed except as provided by law.” See also People v Barfield, 411 Mich 700; 311 MW2d 724 (1981). "Invalid sentence” refers to an error or defect in the sentence or sentencing procedure that entitles a defendant to resentencing or to have the sentence changed. Mich Ct R, p R 6.4-13.
In this case there is no challenge to the validity of the original sentence of probation. Therefore, pursuant to MCR 6.429(A), the trial court lacked authority to modify it.
The challenged sentence also cannot be justified as the result of the purported revocation of defendant’s probation. Although there is ample evidence to support the conclusion that the trial court regarded the March 9, 1990, proceeding as a probation revocation hearing, the procedure employed did not satisfy applicable statutory requirements. MCL 771.4; MSA 28.1134 provides that "the probationer shall be entitled to a written copy of the charges against him or her which constitute the claim that he or she violated probation. ...” In the present case, the statute was not complied with, because defendant was not given written notice of the charges constituting the claim that he violated probation. The revocation of defendant’s probation must therefore be reversed and his prison sentence vacated. People v Ison, 132 Mich App 61; 346 NW2d 894 (1984).
Subsequent probation revocation proceedings and resentencing, if any, shall be conducted by a different judge, and the sentence imposed shall comply with the principle of proportionality enun dated in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). See People v Peters, 191 Mich App 159, 167-168; 477 NW2d 479 (1991).
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Per Curiam.
Defendant was convicted by jury of receiving and concealing stolen property of a value greater than $100, MCL 750.535; MSA 28.803. He appeals his conviction as of right, challenging the validity of the search without a warrant that resulted in the seizure of the property in question. We affirm.
Myrtle Soles and defendant lived together for a number of years, until Soles moved out in January 1989. In April 1989, Soles contacted the police, complaining that defendant had scratched the paint on her car with a key. She also told the police that she believed defendant possessed Acer computer equipment that had been stolen from the State of Michigan.
After ascertaining that an office of the Department of State Police to which defendant had access was missing some computer equipment, police obtained the serial number of the missing computer. However, no search warrant was obtained, because Soles had not seen the computer equip ment since leaving defendant several months earlier, and thus the information was stale. An officer visited defendant’s residence in late May 1989 and, after being admitted into the residence by defendant, noticed a computer very similar to the missing property while walking through the house.
The officer interviewed defendant concerning the damage to Soles’ automobile and informed him that he was also investigating the possibility that defendant possessed stolen state computer equipment. Defendant gave the officer permission to check the serial number on the computer equipment, whereupon the officer discovered that it was the missing state equipment.
Defendant contends that the trial court erred in declining to suppress as evidence the seized computer, arguing that the seizure falls under neither the plain-view nor the exigent-circumstances exceptions to the warrant requirement. Defendant does not dispute that he voluntarily allowed the officer to enter his house and to his look at the serial number on the computer. Instead, defendant argues that the officer’s questions about the damage to Soles’ automobile was a mere pretext for getting into defendant’s house to look for the stolen computer and that evidence of the seized computer should have been suppressed because discovery of the computer was not inadvertent.
A seizure without a warrant may be valid under the plain-view exception to the warrant requirement where it is shown that (1) the incriminating character of the evidence was immediately apparent and (2) the police had a lawful right of access to the object. People v Blackburne, 150 Mich App 156, 165; 387 NW2d 850 (1986). The United States Supreme Court held that the inadvertence requirement that had been derived from Coolidge v New Hampshire, 403 US 443, 469; 91 S Ct 2022; 29 L Ed 2d 564 (1971), was the result of dicta and that inadvertence is not required in order to establish the applicability of the plain-view exception to the warrant requirement under the Fourth Amendment. Horton v California, 495 US —; 110 S Ct 2301, 2309-2311; 110 L Ed 2d 112 (1990).
We conclude that the Michigan Constitution affords no greater protection than does the Fourth Amendment. See, e.g., People v Moore (On Remand), 186 Mich App 551, 554-555; 465 NW2d 573 (1990). However, although Moore was approved for publication on November 19, 1990, it was initially released as an unpublished opinion per curiam before November 1, 1990, the effective date of Administrative Order No. 1990-6, 436 Mich xxxi; Mich Ct R, p Al-47. Administrative Order No. 1990-6 requires that this Court follow the rule of law established by a prior published decision of this Court issued on or after November 1, 1990. Kuikstra v Cheers Good Time Saloons, Inc, 187 Mich App 699, 704; 468 NW2d 533 (1991). Accordingly, Moore is not binding precedent under Administrative Order No. 1990-6. Further, since the adoption of Administrative Order No. 1990-6, at least two panels of this Court have indicated that the discovery of the evidence must have been inadvertent in order for the seizure of the evidence without a warrant to come within the plain-view exception. People v Davis, 189 Mich App 468, 476; 473 NW2d 748 (1991), and People v Jordan, 187 Mich App 582, 588; 468 NW2d 294 (1991) (Holbrook, Jr., P.J.). The question becomes whether either of these cases constitutes binding precedent under Administrative Order No. 1990-6 with respect to the issue of the inadvertence requirement.
In Davis, the dispositive issue was whether the police had the authority to be in the defendant’s motel room in the first place, not whether the subsequent discovery of a gun in that room was inadvertent. The Davis panel neither mentioned nor discussed the effect of Horton, instead relying on Coolidge. Therefore, consideration of the question whether inadvertence is required under the Michigan Constitution was not essential to the determination of that case, and no rule of law to which Administrative Order No. 1990-6 applies resulted concerning the scope of the Michigan Constitution. Roberts v Auto-Owners Ins Co, 422 Mich 594, 597-598; 374 NW2d 905 (1985); Kuikstra, supra, 705.
In Jordan, the issue under consideration was whether a third party (a hospital) had the authority to consent to the search of the defendant’s clothing while the defendant was undergoing surgery for a bullet wound. Again, the Horton decision was not mentioned, and its effect was not discussed. The question whether the Michigan Constitution requires a finding of inadvertence in order to establish the applicability of the plain-view exception was not essential to the determination of the case, and no rule of law to which Administrative Order No. 1990-6 applies resulted concerning the scope of the Michigan Constitution. Roberts, supra; Kuikstra, supra.
We conclude that neither Davis nor Jordan is binding precedent under Administrative Order No. 1990-6 with regard to the question of inadvertence. We do not believe that the Michigan Constitution affords greater protection in this regard than does the Fourth Amendment. See Moore, supra. We follow Horton and hold that inadvertence of discovery is not a requirement of the plain-view exception to the warrant requirement under the Michigan Constitution.
In the present case, defendant does not dispute that he consented to the police officer’s entry and presence in his home and to the officer’s checking of the serial number on the computer located there. The police officer’s entry into and movement within the house with defendant’s consent properly placed him in a position to see the computer equipment, the appearance of which was incriminating in light of Soles’ information and the police investigation. In these circumstances, the seizure of the computer equipment fell within the consent and plain-view exceptions to the warrant requirement. That the officer’s approach to defendant may have been a pretext does not alter the outcome:
The fact that an officer is interested in an item of evidence and . fully expects to find it in the course of a search should not invalidate its seizure if the search is confined in area and duration by the terms of a warrant or a valid exception to the warrant requirement. [Horton, 110 S Ct 2309.]
The trial court’s ruling was not clearly erroneous, People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983); Jordan, supra, 589-590, and it is therefore affirmed.
Const 1963, art 1, § 11.
People v Kaigler, 368 Mich 281, 294; 118 NW2d 406 (1962); People v Malone, 180 Mich App 347, 355; 447 NW2d 157 (1989). | [
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Memorandum Opinion.
A jury convicted defendant of breaking and entering with intent to commit a larceny, MCLA 750.110; MSA 28.305. He was sentenced and he appeals.
A review of the record and briefs discloses no reversible error.
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Lesinski, C. J.
Defendant Juan Compian was convicted by a jury of assault with intent to commit unarmed robbery, MCLA 750.88; MSA 28.283, as was defendant Joseph Kondakor. Defendant Kondakor was also convicted of assault with intent to do great bodily harm less than the crime of murder, MCLA 750.84; MSA 28.279. Both defendants appeal as of right.
The record reveals that on the night of November 12, 1966, two Detroit policemen were on patrol in an unmarked car when they saw a vehicle with its lights out and the engine running in a parking lot in Patton Park. When the two officers reached the parked car, they saw three men, including defendant Kondakor, approaching the vehicle which contained four additional men. One of the men volunteered information that a man who had been beaten or in an accident was lying in the parking lot. Subsequently, one of the police officers found a wallet and a pair of gloves in the parking lot. The wallet belonged to the victim, and he had also been carrying the gloves. The police officers took all seven of the men which they had found at the scene to the police station. Of the four men ultimately tried on the charge, defendants Compian and Kondakor were the only two found guilty.
On appeal defendant Compian urges two errors. He alleges that the trial court committed error in failing to direct a verdict for defendant at the close of the people’s case, and that the combined influence of drugs and alcohol rendered him incapable of possessing the intent required to be guilty of assault with intent to commit unarmed robbery.
As this Court stated in People v Compton, 23 Mich App 42, 44 (1970), “the question presented by a motion for directed verdict of not guilty is whether there is evidence from which the jury can reasonably infer all the elements of the crime charged”. See, also, People v Qualls, 9 Mich App 689 (1968).
The complaining witness in this case, who suffered severe head -injuries from the beating, was unable to recall any details of the incident. Two of the men who accompanied defendants on the night in question, but were not defendants in this case, Jerry Parker and Jose Salas, testified. Jerry Parker testified that he, defendant Compian, and defendant Kondakor exited from the car and approached the complaining witness, after defendant Kondakor had stated, “Let’s go see if he’s got some money”. On cross-examination, witness Parker testified that no indication was given that anyone was going to attack or rob the complaining witness when the three left the car. Parker further testified that when defendant Kondakor struck the complaining witness, both Parker and defendant Compian went back to the car. Parker said that defendant Compian did not strike the complaining witness, and that defendant Compian attempted to give artificial respiration to the injured man when the men accompanied the police back to the point where he lay. On redirect examination, the witness related that there had been previous talk about robbing a hitchhiker, before the men had reached Patton Park.
Jose Salas testified that defendants Kondakor and Compian, along with Parker, got out of the car when they arrived at Patton Park. Witness Salas said that Kondakor, Parker, and Compian started “banging around” the complaining witness. Salas further stated that the complaining witness attempted to get away and all three of them hit him. On cross-examination, in response to the question whether he saw defendant Compian hit the complaining witness, Salas responded, “Well, I am not too sure”.
On the basis of this testimony, evidence existed, under the Compton holding, from which the jury could infer all the elements of assault with intent to commit unarmed robbery.
Defendant Compian’s second allegation of error is also without merit. Defendant argues that he could not have held the requisite intent necessary to commit the crime of assault with intent to commit unarmed robbery when he had drunk one-half of a “jumbo” of beer and two shots of whiskey, taken two Seconal and three Dexedrine tablets, and smoked marijuana before the crime occurred.
It is law in this state that intoxication can negative the existence of the specific intent necessary to be guilty of certain crimes. People v Guillett, 342 Mich 1 (1955). Under the authority of People v Kelley, 21 Mich App 612 (1970), unarmed robbery is a specific intent crime, since “robbery is larceny committed by assault or putting in fear and * * * larceny is a specific intent crime”. Kelley, supra, at 619. However, not every degree of intoxication is sufficient to serve as a defense to a specific intent crime. To the contrary, defendant’s mental capacities must be so impaired by intoxication “that he was not conscious of what he was doing, or he did not know what he was doing”. Kelley, supra, at 623. See, also, People v Berryhill, 8 Mich App 497 (1967).
Defendant Compian’s argument on this issue is properly regarded as a sufficiency of the evidence question. He alleges no error in the trial court’s instructions on intoxication, or in any rulings regarding evidence introduced on that issue. The standard employed by this Court in determining sufficiency of the evidence questions is “whether the evidence warrants a finding of guilty beyond a reasonable doubt of the crime charged”. People v Schram, 1 Mich App 279, 282 (1965). The evidence in this case does warrant a finding of guilty beyond a reasonable doubt.
Defendant Kondakor, on appeal, in addition to other errors, also cites the trial court’s denial of his motion for directed verdict at the close of the people’s case.
The record reveals that witnesses Parker and Salas testified that defendant Kondakor hit and kicked the complaining witness. There was testimony by Parker and Salas that, after the attack had commenced, Parker and defendant Compian returned to the car, but defendant Kondakor remained behind kicking the complaining witness.
There was also evidence offered that Kondakor had been drinking extensively. Indeed, his defense at trial was based on intoxication. On direct exam ination, witness Parker testified that none of the boys were staggering, speaking- with slurred speech, or giving an indication that they were drunk. On cross-examination, Parker stated that defendant Kondakor’s eyes were glassy, and he wasn’t walking straight. Witness Salas testified defendant Kondakor was staggering “a little bit”.
It was properly a matter left to the jury to determine from the evidence whether defendant was intoxicated to a degree sufficient to negate his specific intent.
Defendant Kondakor also complains of the prosecutor’s reference to institutional psychosis and the personality changes that men experience after being incarcerated for three years. The prosecutor made the reference in a hypothetical question put to defendant’s expert witness, a psychiatrist. Defendant moved for a mistrial at that point, and the trial court denied the motion. It has long been the law in this state that reference to a defendant’s prior incarceration is inadmissible, and grounds for reversal, unless such reference is material and relevant to the issue being raised. People v Fleish, 321 Mich 443 (1948); People v Sullivan, 32 Mich App 181 (1971); People v McPherson, 21 Mich App 385 (1970).
The issue being raised in the instant case is whether defendant was intoxicated and unable to form the specific intent necessary to be guilty of assault with intent to commit unarmed robbery and assault with intent to do great bodily harm less than murder. Defendant’s expert witness interviewed him some three years after the incident had occurred. He testified that defendant Kondakor was a “rather impulsive person” who “had difficulty controlling his anger impulses”. Drugs, the psychiatrist stated, would lessen defendant’s ability to maintain control of himself. Given such testimony and. the fact that the psychiatrist was testifying as to defendant’s personality when almost three years had elapsed between the robbery and the psychiatrist’s first contact with defendant, it was proper for the prosecutor, in a hypothetical question on cross-examination, to inquire into any circumstances occurring between November 12, 1966, and the interview which might have altered defendant’s personality.
In People v Woody, 380 Mich 332 (1968), where defendant’s major defense at trial was insanity, the Michigan Supreme Court held admissible the prosecutor’s questioning of defendant’s expert witness, a psychiatrist, concerning prior arrests and convictions of defendant. As the Court there stated:
“Testimony of prior arrests, convictions, assaultive and antisocial conduct, ordinarily completely inadmissible as bearing on the general guilt or innocence of the accused of the offense charged, became material and admissible as bearing on the issue of his sanity.” 380 Mich 332, 338.
In the instant case, defendant’s sanity was not in issue, but the defense had placed in issue the effect which intoxicants might have on an individual with defendant’s personality. Also, immediately after the prosecutor’s question, the trial court instructed the jury that the questions propounded by the prosecutor were hypothetical in nature, and the jury was not to infer facts from hypothetical questions. Accordingly, there was no error flowing from the prosecutor’s question under these facts.
Defendant Kondakor further contends that the prosecutor’s characterization of defendants as “animals” constituted reversible error. Defendant promptly moved for a mistrial, which motion the trial court denied. As this Court stated in People v Pruitt, 28 Mich App 270, 273 (1970), where the prosecutor referred to the defendant as a “thug”:
“Although we do not endorse such subjectivity, a review of the entire record discloses that the trial court corrected this error in its instructions to the jury.”
In charging the jury in the instant case, the trial court stated as follows:
“The Court: * * * Under your oath you are duty-bound to find the facts fairly and squarely as you believe the testimony to warrant, without reference to passion or prejudice, sympathy, fear, or favor. You will seek the truth. You owe that duty equally to the people and to each of the defendants.”
Such charge served to cure the prejudicial effects, if any, occasioned by the prosecutor’s remarks. We do not find that the characterization was prejudicial to defendant or led to an improper result, as the trial court properly charged the jury as to passion and prejudice, and two of the four defendants on trial were acquitted by the jury. See People v De-Beaulieu, 308 Mich 173 (1944).
Additionally, defendant Kondakor charges the trial court with error in its instructions to the jury. Two of those errors were not objected to below. Errors raised for the first time on appeal will not be considered by this Court absent a showing of manifest injustice. People v Mason, 22 Mich App 595 (1970); People v Mallory, 2 Mich App 359 (1966); GCR 1963, 516.2. There is no showing of manifest injustice here.
Defendant Kondakor did save the other two issues for appeal, however. The trial court refused to instruct the jury that circumstantial evidence could be employed to prove innocence as well as guilt. A review of the trial court’s charge indicates that it gave a correct instruction to the jury on the use of circumstantial evidence by the people to prove defendant’s guilt. A search by this Court has re-, vealed no Michigan cases on point, as to whether defendant is entitled to an instruction on the use of circumstantial evidence to prove defendant’s innocence.
However, case law from other jurisdictions has held that such an instruction need not be given by the trial court. As was pointed out by the Minnesota Supreme Court in State v Waltz, 237 Minn 409; 54 NW2d 791 (1952), the accused carries no burden of proof in a criminal prosecution but a presumption of innocence. Any evidence offered by defendant need not prove his innocence but only establish that the prosecution has not proved defendant’s guilt beyond a reasonable doubt. Thus, evidence offered by the defendant to cast doubt on- the people’s case is not governed by the strict rules applicable to inculpatory circumstantial evidence. See, also, State v Frederick, 74 NM 42; 390 P2d 281 (1964); Sikes v State, 120 Ga 494; 48 SE 153 (1904). No error resulted from the trial court’s failure to give the proposed instruction.
Defendant also argues that it was error for the trial court to instruct the jury that there must be a finding of intent to inflict an aggravated or serious injury in order to be guilty of an aggravated assault. Defendant Kondakor contends that aggravated assault is not a specific intent crime. The statutory provision reads as follows:
“Any person who shall assault another without any weapon and inflict serious or aggravated injury upon the person of another without intending to commit the crime of murder, and without intending to inflict great bodily harm less than the crime of murder, shall be guilty of a misdemeanor.” MCLA 750.81a; MSA 28.276(1).
However, defendant was not prejudiced thereby. The jury found him guilty of a specific intent crime, assault with intent to do great bodily harm less than the crime of murder. The court’s instructions on that crime were correct. Also, the trial court indicated to the jury that assault with intent to do great bodily harm requires a greater intent to do serious injury than aggravated assault requires. The trial judge further charged the jury correctly as to simple assault and assault and battery. Consequently, given the correctness of the trial court’s charge as a whole and the jury’s determination of defendant’s guilt of assault with intent to do great bodily harm less than murder, which is a specific intent crime, defendant was not prejudiced by the trial court declaring aggravated assault to be a specific intent crime. If that portion of the charg’e complained of was erroneous, only the people could complain that they were required to prove more than the statute requires. See People v Collins, 380 Mich 131, 135 (1968).
Defendant’s final claimed error is grounded on the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution and Michigan Constitution, US Const, Am V and Const 1963, art 1, § 15. He argues that, by being found guilty of assault with intent to commit unarmed robbery and assault with intent to commit great bodily harm less than murder, he has been punished twice for the same offense.
The proper test under both the United States and Michigan Constitutions for determining whether two crimes do in fact constitute the same offense is the “same evidence” test. As the United States Supreme Court stated in Blockburger v United States, 284 US 299, 304; 52 S Ct 180, 182; 76 L Ed 306, 309 (1932), the question “is whether each provision requires proof of an additional fact which the other does not”. A recent Michigan case phrased the standard as follows :
“Unless the offense is a necessary element in and part of another, an acquittal or conviction of one is not a bar to prosecution for the other.” People v Wilson, 6 Mich App 474, 476 (1967).
See, also, People v Duncan, 373 Mich 650 (1964); People v Jacoboni, 34 Mich App 84 (1971).
The elements of assault with intent to do great bodily harm less than murder include an attempt with force or violence to do corporal hurt to another and an intent to do serious injury of an aggravated nature. MCLA 750.84; MSA 28.279; 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 1038, p 1427. The essential elements of unarmed robbery are an assault with force and violence, accompanied by an intent to rob and steal, the defendant not being armed. MCLA 750.88; MSA 28.283; 4 Gillespie, Michigan Criminal Law & Procedure, § 2221, pp 2442-2443. Thus, the two crimes involve different specific intents. To be guilty of assault with intent to do great bodily harm less than murder, one must possess an intent to do serious harm of an aggravated nature. To be guilty of assault with intent to commit unarmed robbery, one must possess an intent to rob and steal. Under both the Blockburger and Wilson formulations of the “same evidence” test, defendant Kondakor has not been punished twice for the same offense.
Other allegations of error asserted by defendant Kondakor are so insubstantial as to require no argument or formal submission. People v Wanzer, 36 Mich App 169 (1971).
Affirmed as to both defendants.
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Memorandum Opinion.
Defendant pleaded guilty to use of a motor vehicle without authority but without intent to steal (MCLA 750.414; MSA 28.646) and breaking and entering (MCLA 750.110; MSA 28.305). He was sentenced on both convictions and he appeals.
Our review of the records discloses no error, prejudicial or otherwise.
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T. M. Burns, J.
On April 17,1963, fire destroyed a building at 275 East Ferry Street in the city of Detroit. The building was insured for $45,000 by two insurance companies who paid a total of $40,000 to the owners of the destroyed building.
Both insurance companies and the owners then brought this action against the defendant. The complaints contained two counts: first, that the fire was caused by defendant’s negligence in supplying electricity to the house; and second, that the fire resulted from defendant’s breach of the implied warranties of fitness and merchantability of the electricity supplied.
At the close of plaintiffs’ proofs, defendant moved for a directed verdict. The motion was taken under advisement by the court at that time, and it was renewed again at the close of defendant’s proofs. The trial judge then denied the motion as to the count based on negligence and granted the motion as to the count based on the warranty theory.
In granting the directed verdict for the defendant on the warranty count, the trial court held that because of the properties or character of electricity, it is not a good or commodity to which an implied warranty would attach. The court held that the sale of electricity is a service and, therefore, Article 2 of the Uniform Commercial Code and the implied warranties contained therein do not apply.
The case went to the jury on the negligence theory, and a verdict of no cause for action was returned. Plaintiffs do not appeal from the jury verdict but do appeal as of right from the decision of the trial court granting defendant’s motion for directed verdict on the count based upon the theory of implied warranty.
While we are inclined to agree with the trial court that electricity is not a “good” as that term is defined by the Uniform Commercial Code, the product liability of sellers is not restricted to those situations covered in the code.
“In the judicial development of the consumer’s direct remedy against the manufacturer, several dozen legal theories were coalesced in justification and rationalization of the results which the courts reached. Some of these concepts have been enacted into statutes, such as the Uniform Sales Act, and later the Uniform Commercial Code. But, as the UCC draftsmen acknowledged, the remedy is not statutory, but essentially one fashioned by the courts.” Cova v Harley Davidson Motor Co, 26 Mich App 602, 610 (1970).
We are of the opinion that the implied warranties, as defined by the courts of this state, should apply to the sale of services as well as to the sale of goods. We see no reason upon which a logical distinction can be based, especially when, as here, we are dealing with the production and sale of a form of energy which, under certain circumstances, can be inherently dangerous.
There have been very few cases in this country dealing with the question of whether or not the implied warranties of fitness and merchantability should be held applicable to the sale of a service. Two recent cases are, however, helpful in analyzing the instant question.
In Hoffman v Misericordia Hospital of Philadelphia, 439 Pa 501; 267 A 2d 867 (1970), the court was confronted by an action for damages resulting from' a death which had been allegedly caused by a transfusion of impure blood by the defendant hospital. The trial court had granted the defendant a summary judgment holding that the. implied warranties did not attach to a situation involving essentially a service. The Pennsylvania Supreme Court reversed, however, holding that the implied warranties applied to services, as well as sales of goods.
In Newark, v Gimbel's Inc, 54 NJ 585; 258 A 2d 697 (1969), a patron of a beauty salon was allegedly injured by the application of a product used in giving the patron a permanent wave. An action was brought based upon both negligence and implied warranty, but the trial court submitted the case to the jury on the negligence issue only. The New Jersey Supreme Court reversed, refusing to apply a highly artificial distinction between the sale of a good and the sale of a service in deciding what situations are covered by implied warranties.
We are in accord with the approach taken by the New Jersey and Pennsylvania Courts. We see no reason why the concepts of implied warranty should depend upon a distinction between the sale of a good and the sale of a service. We therefore hold that the trial court’s reason for directing the verdict in defendant’s favor is in error.
However, rather than make any sweeping generalizations by holding that implied warranties attach to the rendering of all services, we prefer to limit the scope of this decision to the sale of electricity. We are sure that sellers of some services, such as here when a dangerous force is involved, should give the warranties, while other should not. For the present, we feel that the expansion of the law in this area should proceed on a case by case basis at least until some general principles can be evolved.
Although we have held that the trial court’s reason for granting the summary judgment in defendant’s favor was wrong, in a difficult case of first impression, we believe his decision to grant the directed verdict was correct.
The fact that we have held that the implied warranties of fitness and merchantability do apply to the sale of electricity does not mean the plaintiffs can recover with no showing of fault. Although negligence need not be shown, plaintiffs must still show that there was a defect in the electricity at .the time it left the manufacturer and that the defect was the proximate cause of the plaintiffs’ damages. Piercefield v Remington Arms Co, 375 Mich 85 (1965); Barefield v LaSalle Coca-Cola Bottling Co, 370 Mich 1 (1963); Mattson v General Motors Corp, 9 Mich App 473 (1968).
In the instant case two eyewitnesses testified that they saw a glow move from defendant’s transformer down to the plaintiffs’ house at which time they heard a “foom” sound. Plaintiffs’ expert witness testified that the phenomenon described by the two eyewitnesses could have been an electrical arc. Plaintiffs’ expert never saw the house in question or the equipment of defendant which serviced the house and testified that there was no theory of any defect in defendant’s equipment.
There was no direct or circumstantial evidence as to the quality of the electricity which reached the house. The only evidence as to the state of repair of the defendant’s equipment at the time of the fire came from the defendant’s own witnesses.
The record is lacking in any substantive proof that the fire in plaintiffs’ house was caused by a defect in the manufacture or delivery of the electricity. Had the question been submitted to the jury in order to find defendant liable for breach of warranty, they would have had to find, without substantive proof, that the electricity was defective when it left the manufacturer and that the defect was the proximate cause of the fire. In our opinion, such a finding would have to rest entirely on conjecture.
It is the rule in Michigan that the finding of causation must not be mere conjecture, but rather it must be the result of a reasonable inference. A reasonable inference must be based upon the evidence. If however there are two' or more equally plausible ex planations arising out of the evidence, the selection of one would not be a reasonable inference but would rather be mere conjecture on the part of the trier of fact. Schedlbauer v Chris-Craft Corp, 381 Mich 217 (1968); Cusumano v Stroh Brewery Co, 26 Mich App 549 (1970); Kasten v U S Truck Co, Inc, 28 Mich App 466 (1970).
Beviewing the evidence in the light most favorable to the plaintiff, it is our conclusion that the evidence presented was not sufficient to remove the case from surmise and speculation. Therefore, the directed verdict, though granted for the wrong reason, was not reversible error. A trial court’s assignment of a wrong reason for reaching a correct result does not affect the disposition of the case on appeal. Draws v Levin, 332 Mich 447 (1952); Pociopa v Olson, 13 Mich App 324 (1968).
Affirmed.
All concurred.
See MCLA 440.2314-15; MSA 19.2314-15.
Id.
MCLA 440.2105; MSA 19.2105.
In the instant case the electricity would not “leave the manufacturer” until it actually passed through the customer’s meter. Until that time, the electricity, when passing along the company’s lines, is still under the control of the manufacturer. Therefore, the crucial point, for purposes of proving when the defect exists, is not until the electricity is purchased, i.e. when it passes through and is recorded in the customer’s meter. | [
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Per Curiam.
This appeal is brought by Jeannette Poindexter, who claims to be the common-law wife of the deceased, Robert Burroughs. Mr. Burroughs died intestate, and probate proceedings were commenced in 1989. The appellees are the siblings and the children of the deceased siblings of Robert, and they claim to be his sole heirs.
In 1990, the probate court denied Jeannette’s claim of a valid, common-law marriage und.er the laws of Texas. On September 11, 1990, the court entered its written opinion, finding that Jeannette’s proofs failed with regard to the element of cohabitation within the State of Texas, thereby finding her not to be Robert’s widow.
Texas statutory and common law and the facts in this case must be considered to determine if the evidence is insufficient as a matter of law. Although common-law marriages may no longer be contracted in Michigan, this state does recognize the validity of common-law marriages entered into in accordance with the laws of states that allow that form of marriage. In re Brack Estate, 121 Mich App 585, 588; 329 NW2d 432 (1982). The purported marriage in this case took place in Texas. For a valid common-law marriage to occur in Texas, three elements are necessary: (1) an agreement presently to be husband and wife; (2) living together in Texas as husband and wife; and (3) holding each other out to the public as husband and wife. Winfield v Renfro, 821 SW2d 640 (Tex Civ App, 1991); Garduno v Garduno, 760 SW2d 735 (Tex Civ App, 1988). The elements of agreement and holding out do not appear to be in dispute in this case. The decisive issue, therefore, is whether the element of cohabitation was satisfied.
In Texas, claims of common-law marriage are closely scrutinized by the courts. Strict requirements necessitating proof of each of the elements of such marriage must be established before the courts will lend judicial sanction to any assertion that a marriage relationship exists. Chatman v State, 513 SW2d 854 (Tex Civ App, 1974).
The term "lived and cohabited together as husband and wife” means living together, claiming to be married, and doing those things ordinarily done by husband and wife. Walter v Walter, 433 SW2d 183 (Tex Civ App, 1968). There is no specified length of time the parties must live together, but there must be a constancy of dwelling together. Walter, supra. There exists at least some authority that the cohabitation must occur in Texas, Walter, supra, or that the contacts with Texas must be substantial, In re Estate of Willard, 93 NM 352; 600 P2d 298 (1979).
The probate court concluded that, as a matter of law, the evidence was insufficient to support a finding of cohabitation in Texas. Jeannette and Robert lived together in Michigan since the mid-1960s. From December 1982 until October 1983, Jeannette leased an apartment in Houston while she was Dean of Nursing at a university. Robert remained in Michigan, and would fly to Texas once a month for a weekend. Jeannette would also fly to Michigan on occasion. Robert also spent his vacation in Houston. In October 1983, Jeannette moved back to Michigan and commuted to Texas for the remaining year of her employment.
The cohabitation requirement of the Texas statute has been literally interpreted by the courts in Texas and elsewhere, which have narrowly focused on the domicile of the parties and other policy rationales for their interpretation. In In re Estate of Stahl, 13 Ill App 3d 680; 301 NE2d 82 (1973), the court focused on the domicile of the parties and held that a person can have only one domicile and must meet two criteria to establish a domicile. First, a person must physically go to the new home and live there. Second, the person must do so with the intention of making it the permanent home. Id. at 683. Although proof of legal residency in the state in which the common-law marriage is claimed is unnecessary, lack of it is a factor to be considered. In re Estate of Bivian, 98 NM 722; 652 P2d 744 (1982). In Bivian, the court advanced policy reasons for literally interpreting the statute as requiring the parties to cohabit in the State of Texas by stating:
[B]ecause of the mobility of modern society, the possibility of fraud arising from claims of common-law marriage, and the uncertainty which such claims of marriage inject into the affairs of individuals, it is not enough to establish a common-law marriage that the parties have together made occasional visits to a jurisdiction that recognizes common-law marriages. [Id. at 727.]
In some cases, the courts have found a common-law marriage to exist where one of the parties does not reside in Texas but visits as often as possible under the given circumstances. See, e.g., Winfield, supra; Bolash v Heid, 733 SW2d 698 (Tex Civ App, 1987). In such cases, however, one of the parties resided in Texas. Here, neither Jeannette nor Robert was a permanent resident of Texas. The fact that Robert maintained the family home in Michigan negates a finding of cohabitation in Texas. We agree with the probate judge that Jeannette cannot "transplant her long time relationship with Decedent in Michigan to Texas” on the basis of the facts presented herein. Living together in Michigan does not satisfy the Texas cohabitation element. Williams v Home Indemnity Co, 722 SW2d 786, 788 (Tex Civ App, 1987).
Affirmed. | [
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Brennan, J.
Following a jury trial, defendant was convicted of armed robbery, MCL 750.529; MSA 28.797, and was sentenced to eight to sixteen years’ imprisonment. Defendant appeals by leave granted. We affirm.
Defendant argues that the court erred in denying his request to instruct the jury with regard to the following lesser included offenses of armed robbery: assault with intent to commit unarmed robbery, MCL 750.88; MSA 28.283, and larceny from a person, MCL 750.357; MSA 28.589. We find that any error was harmless because the jury was instructed with regard to the lesser included offense of assault with intent to commit armed robbery, MCL 750.89; MSA 28.284, but, nevertheless, returned a verdict of guilty of the greater offense of armed robbery. People v Mosko, 190 Mich App 204, 209-210; 475 NW2d 866 (1991). Defendant’s theory at trial was that nothing had happened. He never contended that an unarmed assault occurred. Moreover, there was no evidence that a weapon was not used in the assault. Accordingly, we find that reversal of defendant’s conviction is not warranted.
Remand for resentencing is not necessary because we do not find that the trial judge’s admonitions and observations at sentencing constituted an expression of impermissible sentencing considerations. Knowing as we do that the trial judge is of the same race as defendant, we can find no offensive or inappropriate consideration underlying her comment regarding her disappointment, which certainly must have reflected all of responsible society’s disappointment in the felonious acts of all convicted criminals, in defendant as a black man. Her comments are not racist in any pejorative sense, they are feminist. No claim is made that feminist exhortations are impermissible. Except for the reference to defendant not deserving a lawyer, which we do find puzzling, the other com ments reflect the attitudes of society, and some are personified in the programs recently instituted in this state by its leading citizen.
Defendant also claims that the court made biased and hostile comments at sentencing. Sentencing is the time for comments against felonious, antisocial behavior recounted and unraveled before the eyes of the sentencer. At that critical stage of the proceeding when penalty is levied, the law vindicated, and the grievance of society and the victim redressed, the language of punishment need not be tepid.
Affirmed. | [
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Per Curiam.
Richard J. Sécula and Lawrence Latka appeal as of right an order granting their motion for summary disposition and denying their motion for sanctions. Defendants argue that, because plaintiffs misrepresentation claim was devoid of any legal merit, sanctions are appropriate pursuant to MCR 2.114(F), 2.625(A)(2), and MCL 600.2591(3)(a); MSA 27A.2591(3)(a). We disagree and affirm.
Contrary to defendants’ interpretation, plaintiffs misrepresentation claim was based upon a document that provided for assumption of the defendants’ land contract and was included with the closing documents of the real estate transaction between plaintiff and defendants. Defendants’ agents, Mitchell Breest and Russell Raftary, assured plaintiff that defendants approved of the assumption in spite of the cash mortgage provision contained within the original offer and acceptance. Defendants received the closing package before closing and gave no indication to either plaintiff or the brokers that they did not approve of the assumption and would not attend the closing.
Plaintiff originally filed claims of breach of contract and misrepresentation. However, following discovery, plaintiffs counsel agreed that the breach of contract claim was precluded because of the statute of frauds and agreed to dismiss the claim. Although defendants filed motions for summary disposition of both claims, the only real issue before the trial court was the misrepresentation claim.
Defendants assert that the trial court erred in denying their motion for costs and attorney fees and that they are entitled to costs and attorney fees pursuant to MCR 2.114(F) and 2.625(A)(2) because plaintiffs claim was devoid of any legal basis and therefore frivolous. A trial court’s finding that a plaintiffs claim is not frivolous is governed by the clearly erroneous standard. DeWald v Isola, 180 Mich App 129, 134; 446 NW2d 620 (1989).
In this case, although plaintiffs claim failed, sufficient facts were pleaded and sufficient evidence was presented to allow us to conclude that plaintiff could reasonably have believed that he had legal authority upon which to base a claim of fraudulent misrepresentation based upon the land contract assumption provision contained within the closing documents. See State-William Partnership v Gale, 169 Mich App 170, 178; 425 NW2d 756 (1988). Consequently, the trial court did not err in refusing to impose sanctions.
Affirmed. | [
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Per Curiam:.
Claimant appeals as of right from an order of forfeiture of his house and certain of its contents under MCL 333.7521(f); MSA 14.15(7521)(f). We reverse.
A person who had been a guest in claimant’s home sold cocaine to an undercover agent who made payment with marked bills. Claimant and the seller were arrested near the home shortly thereafter. Marked money was found on claimant and in his safe-deposit box. Claimant confessed that he knew drugs were being sold out of his home.
Notices of seizure and intent to forfeit were served two to three weeks after defendant’s arrest. A petition for forfeiture was served twenty-one days thereafter. The trial court, sua sponte, issued an order to show cause why the property should not be forfeited, and a hearing was held on the business day after claimant’s answer to the petition was due. Forfeiture was ordered at the conclusion of that hearing.
Claimant complains of the summary procedures followed in this case, including the failure to serve him with a summons, the failure to attach an itemized list of items to the complaint, the issuance sua sponte of a show cause order, the lack of adequate time to prepare for the hearing, the failure to hold a pretrial conference, and the failure to allow discovery or to allow him to litigate the affirmative defenses raised in his answer, including the voluntariness of his confession and the legality of the search of his home. The prosecutor argues that the statute contemplates a summary procedure and that, even if there were errors below, they were harmless in light of the overwhelming evidence against claimant. For the reasons outlined herein, we disagree.
The controlled substances article of the Public Health Code allows the forfeiture of "[a]ny thing of value that is furnished or intended to be fur nished in exchange for a controlled substance . . . in violation of this article or . . . that is traceable to an exchange for a controlled substance, ... or that is used or intended to be used to facilitate any violation of this article.” MCL 333.7521(f); MSA 14.15(7521)(f). The statute requires a substantial connection between the property and the criminal activity. In re Forfeiture of $5,264, 432 Mich 242, 244-245; 439 NW2d 246 (1989). The prosecution has the burden of proving its case by a preponderance of the evidence. In re Forfeiture of $15,232, 183 Mich App 833, 836; 455 NW2d 428 (1990). Although the statute contains certain deadlines and notice requirements, it does not explicitly provide rules of procedure, except that it allows for the summary forfeiture of drugs and plants used to produce drugs. See MCL 333.7523(1); MSA 14.15(7523)(1), concerning notice and deadlines, and MCL 333.7525; MSA 14.15(7525), concerning summary forfeiture.
"The Michigan Court Rules govern practice and procedure in all courts” except where more specific rules are provided. MCR 1.103. There are no more specific rules provided for penalty forfeiture proceedings. Summary forfeitures are explicitly allowed only in cases involving "an executory contract for the purchase of premises.” MCR 4.202(A). Penalty forfeiture proceedings are likewise not included in the list of proceedings during which discovery may not be had. See MCR 2.302(A)(2) and (3); see also In re Forfeiture of $1,159,420, 194 Mich App 134; — NW2d — (1992), applying the civil procedure and discovery rules in a forfeiture proceeding, and In re Forfeiture of One 1987 GMC Station Wagon, 186 Mich App 540, 543-546; 465 NW2d 334 (1990), which held that the owner of forfeitable property was not the disobedient party and therefore was not subject to discovery sane tions for his son’s refusal to submit to discovery by the prosecutor. Therefore, we find no support for the contention that the rules of civil procedure do not apply to forfeiture proceedings. We also note that whether and how show cause orders are properly issued is governed by the rules of civil procedure, which militates strongly against the proposition advocated by the prosecutor.
Also noteworthy is the fact that the majority of courts considering the issue have applied the rules of evidence, including the exclusionary rule, to forfeiture proceedings. See Conservation Dep’t v Brown, 335 Mich 343, 350-351; 55 NW2d 859 (1952) (reviewing legality of a seizure of illegally used fishing nets during a forfeiture proceeding); In re $15,232, supra, 183 Mich App 834-837 (hearsay not admissible); In re Forfeiture of $28,088 of United States Currency, 172 Mich App 200, 206; 431 NW2d 437 (1988) (reviewing validity of a search warrant during a forfeiture proceeding); In re Forfeiture of United States Currency, 171 Mich App 684, 686-687; 431 NW2d 42 (1988) (reviewing legality of investigative stop during a forfeiture proceeding); In re Forfeiture of United States Currency, 166 Mich App 81, 89, 91-92; 420 NW2d 131 (1988) (holding that a suppression issue decided in a criminal case could not be relitigated in a forfeiture proceeding, but that the rules of evidence should be strictly applied).
We note that the ruling in In re Forfeiture of One 1985 Mercedes Benz, 174 Mich App 203, 205; 435 NW2d 426 (1988), in which a panel of this Court indicated that hearsay evidence was admissible in a forfeiture proceeding, goes against the weight of authority. As noted in In re $15,232, supra, 183 Mich App 836-837, the Mercedes Benz case relied on federal law developed under the federal forfeiture statute that provides for a forfei ture proceeding that is in the nature of a hearing to determine probable cause and, therefore, a proceeding in which the use of hearsay is proper. See also MRE 1101(b)(3), which provides that rules of evidence do not apply in probable cause proceedings. Michigan law, on the other hand, unlike the federal forfeiture law, requires proof by a preponderance of the evidence. We note further that forfeiture proceedings are not mentioned in the list of situations in which the rules of evidence do not apply. MRE 1101(b). We therefore conclude that both the rules of evidence and the rules of civil procedure apply in forfeiture proceedings.
However, whether illegally seized property is subject to forfeiture at all is a matter that should be considered initially by the trial court. We note that, since the seizure in this case, the statute has been amended to provide for seizure without process "[i]ncident to a lawful arrest, [or] pursuant to a search warrant.” MCL 333.7522(a); MSA 14.15(7522)(a) (emphasis added). However, cases decided before this amendment held that illegally seized property was nevertheless subject to forfeiture as long as only untainted evidence was introduced at the forfeiture hearing. See In re $28,088, supra, 172 Mich App 206; In re United States Currency, supra, 166 Mich App 89. We express no opinion concerning the proper resolution of this question or the resolution of claimant’s other affirmative defenses.
After carefully reviewing the record, we agree that the evidence supporting forfeiture in this case seems overwhelming. However, we cannot conclude that the errors described above were harmless beyond a reasonable doubt. "An error may be intolerably offensive to the maintenance of a sound judicial system ... if it deprived the defendant of a fundamental element of the adversarial process.” People v Furman, 158 Mich App 302, 318; 404 NW2d 246 (1987). We find that the errors below did just that, and, therefore, reversal is required.
Next, claimant argues that he had the right to a trial by jury. We disagree. Forfeiture proceedings are statutory proceedings that were unknown at common law and, therefore, absent a statutory mandate, are not triable by a jury. Conservation Dep’t v Brown, supra at 349-350.
Lastly, claimant argues that because the seizing law enforcement agency did not place the house under seal or post notices, the seizing agency was not in possession of the same and, therefore, the trial court lacked jurisdiction. We agree that "[t]he general rule in such [in rem] proceedings is that possession or control over the subject matter or res of the action is essential to the court’s jurisdiction to enter a judgment.” In re $28,088, supra, 172 Mich App 203 (court has jurisdiction if law enforcement agency has possession or control over the res). However, contrary to claimant’s argument, the statute does not require that the property be placed under seal; it provides that the home "may” be placed under seal or removed or turned over to an administrator. See MCL 333.7523(2)(a)-(c); MSA 14.15(7523)(2)(a)-(c). The statute does not exclude other methods of exercising possession or control. On remand, the trial court is to resolve this issue before trial on the merits.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction. | [
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Memorandum Opinion.
Defendant was tried and convicted of armed robbery and he 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 is granted. | [
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Lesinski, C. J.
Defendant Thomas Patterson Turner was convicted by a judge sitting as trier of fact of both the sale and possession of heroin. MCLA 335.152; MSA 18.1122; MCLA 335.153; MSA 18.1123. He appeals as of right.
The facts of this case established that Melbourne Partridge, a truck driver and acquaintance of the defendant, had collaborated with State Trooper James Ewers in an attempt to determine if the defendant sold narcotics. After feigning friendship with the defendant for several months, Partridge and Ewers met defendant on February 22, 1970, whereupon Partridge asked for some heroin for his girl friend. Partridge then gave the defendant $20 for the heroin. The defendant subsequently bought the heroin from a third party and gave it to Partridge. At that time the defendant informed Partridge that the heroin had cost more than the $20 he had previously supplied. Partridge then gave the defendant an additional $17 to pay the added cost of the heroin.
The defendant’s major contention at trial was that he had been entrapped into committing the offenses charged. The trial court ruled that there was no entrapment.
In Sherman v United States, 356 US 369, 372-373; 78 S Ct 819, 821; 2 L Ed 2d 848, 851 (1958), the United States Supreme Court attempted to dis tinguisb between permissible police conduct and entrapment:
“However, the fact that government agents ‘merely afford opportunities or facilities for the commission of the offense does not’ constitute entrapment. Entrapment occurs only when the criminal conduct was ‘the product of the creative activity’ of law-enforcement officials. (Emphasis supplied.) See 287 US at pp 441, 451. To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal. The principles by which the courts are to make this determination were outlined in Sorrells. On the one hand, at trial the accused may examine the conduct of the government agent; and on the other hand, the accused will be subjected to an ‘appropriate and searching inquiry into his own conduct and predisposition’ as bearing on his claim of innocence. See 287 US at p 451.”
In People v Smith, 296 Mich 176, 182 (1941), the Michigan Supreme Court stated:
“Where the criminal intent originates in the mind of the defendant, the fact that the officers of the government used decoys or truthful statements to furnish opportunity for or to' aid the accused in the commission of a crime, in order successfully to prosecute him therefor, constitutes no defense to such a prosecution.”
In the case at bar, a review of the facts convinces this Court that the defendant was not entrapped into committing these offenses. While it is true that Partridge and Trooper Ewers became friends with the defendant in an attempt to determine if he dealt in narcotics, we are of the opinion that their conduct was limited to providing an opportunity for the commission of the offenses. Defendant’s criminal activity was not the product of the creative activity of the law enforcement officials but resulted from the defendant’s own willingness to commit the offenses charged. The record reveals that defendant exhibited no reluctance or hesitation in his desire to meet the request for narcotics.
As this Court stated in People v Ovalle, 10 Mich App 540, 544 (1968):
“The mere fact that an opportunity was furnished defendant to commit a crime, absent reprehensible creative activity or persistent overexertion, is no defense to subsequent prosecution.”
Defendant thereupon contends that even if this Court should find that the evidence fails to establish entrapment as a defense, it was nevertheless insufficient to warrant the verdict of guilty beyond a reasonable doubt of the sale of heroin. The record reveals that the defendant purchased heroin from a third party for Partridge, at his request, and with funds supplied by him. Defendant maintains that his actions were therefore those of a procuring agent for Partridge, and that consequently there was no sale of heroin but merely a transfer from agent to principal.
In United States v Barcella, 432 F2d 570, 572 (CA 1, 1970), the United States Court of Appeals for the First Circuit recognized that the procuring agent defense to the sale of narcotics is often a handmaiden to the entrapment defense.
“Returning to the decided cases it may be observed that assertion of the procuring agent theory as a defense frequently goes hand in hand with a claim of entrapment. See, e.g., United States v Winfield, ante; Lewis v United States (1964), 119 US App DC 145, 337 F2d 541, cert denied 381 US 920, 85 S Ct 1542,14 L Ed 2d 440; United States v Sizer, ante; Henderson v United States, 5 Cir, 1958, 261 F2d 909; United States v Sawyer, ante. This is not mere coincidence. Evidence of entrapment will often also be evidence that the defendant entered into the illegal transaction solely to help the buyer, and on his behalf.”
The procuring agent defense to the charge of the sale of narcotics has been recognized by almost all of the Federal circuits and by the States of New York, and Massachusetts. It first appeared in United States v Sawyer, 210 F2d 169, 170 (CA 3, 1954). Defendant Sawyer was asked by a police agent to get him some heroin. Sawyer, knowing where heroin could be purchased, took $20 as then proffered, purchased some heroin for $20 and brought it back and gave it to the agent. Sawyer was charged and convicted of the sale of a narcotic under 26 USCA 4705(a). In reversing Sawyer’s conviction, the Court stated:
“In these circumstances, we think the court should at least have pointed out to the jury that if they believed that the Federal agent asked the defendant to get some heroin for him and thereupon the defendant undertook to act in the prospective purchaser’s behalf rather than his own, and in so doing purchased the drug from a third person with whom he wasn’t associated in selling and thereafter delivered it to the buyer, the defendant would not be a seller and could not be convicted under this indictment.”
In Adams v United States, 220 F2d 297, 299 (CA 5, 1955), the Court reversed defendant’s conviction for sale of narcotics and directed that a verdict of acquittal be entered on the ground that the facts established only that defendant was a procuring agent and as such, a sale was not possible:
“All of the evidence was quite consistent with appellant’s acting only as a purchasing agent or messenger instead of as a seller. There was no evidence from which a sale from her to McKinney could be spelled out beyond a reasonable doubt; nor was there any evidence that she profited in any way from the transactions or was associated with her. ‘connection’ in selling narcotics (except for the quite equivocal fact of the two purchases themselves). Therefore, the verdict of guilty of the offense of selling heroin must have been based upon speculation, and the court should have directed a verdict of acquittal.”
In United States v Winfield, 341 F2d 70, 71 (CA 2, 1965), the Court, while affirming the defendant’s conviction for the sale of narcotics, nevertheless recognized the legitimacy of the procuring agent defense :
“Careful scrutiny of the totality of facts in each case is required to determine whether a defendant charged with violating section 4705(a), acted as a seller or procuring agent. * * *
“It is apparent, nonetheless, that when Sawyer is adopted to this case the relationship between Win-field and the ultimate seller assumes critical significance. * * * We no,te that here unlike Adams v United States, 220 F2d 297 (5 Cir 1955), the evidence and the inferences which the trial judge could reasonably draw indicate that Winfield had been previously associated with his connection in selling narcotics. As an illustration, in apologizing for his supplier’s delay, the appellant explained that he had never been late before.”
In the case at bar, there was no showing that the defendant had ever dealt in the sale of heroin prior to the solicitation by his supposed friend Partridge, nor was there a showing that defendant in any way profited from the transaction. As we have noted, defendant’s willingness to obtain the drugs for Partridge obviated any entrapment defense in spite of the fact that the heroin was obtained with funds provided by Partridge, at his request, from a third party whom defendant had not been shown to have previously been associated with in the sale of narcotics. Nonetheless, these same facts are sufficient to raise the issue of a valid procuring agent defense to the charge of sale of heroin.
The term “sale” as used in MCLA 335.152; MSA 18.1122 has been defined in MCLA 335.51(10); MSA 18.1071(10).
“ ‘Sale’ includes barter, exchange, or gift, or offer therefor, and each such transaction made by any person, whether as principal, proprietor, agent, servant, or employee.”
It has been argued that the use of the word “agent” in this definition of “sale” prohibits the procuring agent defense in Michigan. With this position we disagree. Michigan’s definition of “sale” was taken verbatim from the Uniform Narcotic Drug Act. Massachusetts has also adopted this statute and uses the identical definition of “sale”.
In Commonwealth v Harvard, 356 Mass 452; 253 NE2d 346 (1969), the Massachusetts Supreme Court held that the term “agent” in the definition of “sale” refers to the agent of the vendor, rather than the agent of the purchaser, which is the case in the procuring agent defense. The Massachusetts Supreme Court was adamant in its interpretation that this definition of “sale” in no way prohibited the procuring agent defense. See, also, People v Branch, 13 App Div 2d 714; 213 NYS2d 535 (1961), for a similar interpretation in regard to the New York “sale” definition.
This Court is of the opinion that the term “agent” used in the “sale” definition refers only to the agent of the vendor. In this determination we adopt the Massachusetts Supreme Court’s interpretation of this provision of the Uniform Narcotics Drug Act. We do this with full knowledge that the Supreme Court of Illinois has given a far broader interpretation to the word “agent” in its sale statute. However, we are convinced that a procuring agent who buys from a third party with funds provided by his principal and at the principal’s request is far different from the employee of a narcotics peddler. It is only the latter individual who can in any sense be considered to be a seller of narcotics.
This Court finds that the evidence presented a valid procuring agent defense to a charge of sale of heroin. There being insufficient evidence to support a conviction of sale, the trial court should have directed a verdict of acquittal to this charge.
Defendant next contends that his conviction of possession of heroin should also be reversed since his possession of the heroin was limited to that of a conduit from the third party to Partridge. This is the identical argument which was raised in regard to the possession charge in Commonwealth v Harvard, 356 Mass at 457-458; 253 NE2d at 349. The Massachusetts Supreme Court recognized that a procuring agent could still be convicted of possession. It stated:
“Admittedly, tbe defendant was in possession of marihuana on May 17 when Zacharo handed the plastic bag containing it to the defendant who in turn passed it to Martin. The defendant argues that such fleeting, momentary contact with the drug does not constitute the possession proscribed by the statute. We disagree. At the moment the defendant received the drug he had the control and power to do with it what he willed. In this case he chose to hand it immediately to Martin rather than hold it longer, keep it himself, or otherwise deal with it. Possession ought not to depend on the duration of time elapsing after one has an object under his control.”
This Court is of the opinion that the Massachusetts Court was correct in its view that even where a valid procuring agent defense is made out to a charge of “sale,” a conviction for “possession” during the time when the procuring agent acted as a conduit for the illegal drug transfer is valid. Defendant had total control of the heroin prior to' his transfer of it to Partridge. This control was sufficient to warrant a conviction for possession of heroin.
Defendant’s claim that the trial court failed to make sufficient findings of fact to support the conviction for possession of heroin is without merit, as the requirements of GrCR 1963, 517.1 were met. Defendant’s challenge to the verdict itself as being incomplete, imprecise, and indefinite is likewise without merit.
As to the claimed error in the trial court’s refusal to quash the information, this Court finds no error. While it is true the trial court stated the wrong standard, to-wit: that the district court could find from the record “that there was probable cause to believe that the offense was committed”, we are of the opinion that the district court itself found that a crime had been committed, which is the proper standard to bind defendant over for trial.
Defendant finally contends that his sentence for his conviction of possession of heroin is invalid. In sentencing defendant, the trial judge inadvertently mentioned the word “marijuana” rather than “heroin”. This Court pursuant to the power granted it by GCR 1963, 820 hereby corrects this sentence to read:
“On the possession of heroin, it will be the sentence of the Court that you be confined in the Prison of Southern Michigan under the supervision, direction, and control of the Michigan Department of Corrections for a minimum period of four years to a maximum period of ten years.” (Emphasis supplied.)
Reversed and a verdict of acquittal entered as to the conviction for sale of heroin.
Affirmed as to the conviction for possession of heroin.
All concurred.
26 USCA 4705(a) was repealed. Pub L 91-513, Title III, § 1101(b)(3)(A), October 27, 1970, 84 Stat 1292. It formerly stated:
“It shall be unlawful for any person to sell, barter, exchange or give away narcotic drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the secretary or his delegate.”
This provision is similar in scope to MCLA 335.152; MSA 18.1122, which states:
“Any person not having a license under the provisions of Act No 343 of the Public Acts of 1937, as amended, being sections 335.51 to 335.78, inclusive, of the Compiled Laws of 1948, who shall sell, manufacture, produce, administer, dispense or prescribe any narcotic drug shall be deemed guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for a term of not less than 20 years nor more than life.” | [
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Fitzgerald, J.
Defendants appeal as of right a January 31, 1990, order denying their motions for judgment notwithstanding the verdict and a new trial in this wrongful death action, originally filed on May 25, 1982. On August 21, 1989, a jury rendered a $900,000 verdict for plaintiff. Defendants were foster-care social workers working for the Wayne County Department of Social Services. Pursuant to § 623(1) of the Child Protection Law, defendants were required to report child abuse and neglect to the protective services division of the dss. Plaintiff, decedent’s sister, brought suit under MCL 722.633; MSA 25.248(13), which provides for civil liability for failure to report child abuse or neglect. We affirm.
FACTS
On March 4, 1981, twenty-three-month-old Ni cole Williams was found dead by police at her mother’s residence. Nicole weighed twenty pounds and died of long-term nutritional deprivation or failure to thrive. Testimony revealed that although Nicole had been in the ninetieth percentile for height at the time of her birth, she was below the first percentile for her age group for both height and weight at the time of her death.
The record indicated that Josephine Williams, Nicole’s mother, previously had four children removed from her custody because of her inability to care for them. Josephine Williams had a long history of hospitalizations and erratic behavior due to schizophrenia, dss records indicated that attempts to reunite the older children with their mother were unsuccessful because of her ongoing mental health problems. Nicole, the fifth child, was born after the four older children had been removed from the mother’s home, dss workers knew that a fifth child was due, but their records contained no reference to Nicole until she was eight months of age, when plaintiff complained about her care to the dss in December of 1979. At that time, defendant Coleman reported the concern to the protective services unit within the dss, which investigated and found that although the conditions were marginal, Nicole was not neglected.
Plaintiff contends that defendants received additional reports of neglect both from herself and from Katie Edwards, a foster-care mother, and did not report those concerns to protective services. Plaintiff and Edwards evidently did not report their concerns directly to protective services because defendant Coleman advised them that she would act on their complaints. Two weeks before Nicole’s death, Edwards talked with defendant Coleman about the poor care Nicole was receiving and her need to be cared for away from her mother. Other than the initial 1979 report, defendant Coleman and her supervisor, defendant Hey-ward, did not report any subsequent suspected problems to protective services, nor did they assess whether there was a need for foster-care placement.
Coleman testified that on the occasions that she saw Nicole she seemed adequately cared for. Coleman stated that she lost track of Mrs. Williams in March of 1980 and did not obtain her new address until after Nicole’s death a year later. She attempted to find Williams through the client information system. Defendants claimed that no one else contacted them with complaints or concerns about Nicole, and they did not have a sufficient basis to warrant subsequent referrals to protective services after December of 1979.
i
We are presented with the question whether governmental immunity applies to foster-care workers where they fail to report child abuse or neglect. MCL 722.623(1); MSA 25.248(3)(1) imposes a statutory duty on social workers and others to make a report when they have "reasonable cause to suspect child abuse or neglect.” MCL 722.633(1); MSA 25.248(13)(1) provides a civil cause of action for damages proximately caused by failure to report abuse or neglect against persons required to make reports. We find that whether this issue is analyzed from a statutory-construction and legislative-intent framework or from a Ross immunity framework, the result is the same. Under the facts before us, the social workers were not immune.
Plaintiff first argues that the prescribed reporting mechanism in the Child Protection Law eliminates any choices related to reporting and any immunity defense that defendants might otherwise have. Defendants argue that they still must exercise some judgment in deciding how much information will give them reasonable cause to suspect abuse or neglect. Defendants also assert that although the Legislature created immunity for good-faith reporting, it did not specifically limit any other immunity arising from sources other than the Child Protection Law. Plaintiff responds that the Legislature, by implication, rejected other forms of immunity when it made no provision for any other form of immunity in the Child Protection Law.
In its ruling on immunity, the trial court stated that immunity for a government employee was statutory and that the Child Protection Law imposed specific duties and liability that rendered defendants not immune. Defendants argue that the trial court erred in relying on the assumption that immunity for governmental employees was created by statute, because individual employee immunity was not at that time a creature of statute, but of the common law, as articulated in Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984). We agree. In 1984, before the Legislature’s enactment of the tort reform amendments, the Supreme Court noted that whatever immunity that existed for public employees in Michigan was provided by the common law. Id. at 678-679. Defendants argue that the Child Protection Law must be strictly construed because common-law defenses such as immunity may not be abolished absent a clear legislative intent to do so. Rusinek v Schultz, Snyder & Steele Lumber Co, 411 Mich 502, 507-508; 309 NW2d 163 (1981). However, a statute must be construed sensibly and in harmony with the legislative purpose, id. at 508; In re Cameron’s Estate, 170 Mich 578, 582; 136 NW 451 (1912), and statutes should be construed to effectuate their purpose, In re Barnhart Estate, 127 Mich App 381, 387; 339 NW2d 28 (1983). In addition, a remedial statute, such as the Child Protection Law, that attempts to protect the public health and general welfare should be liberally construed. Soap & Detergent Ass’n v Natural Resources Comm, 415 Mich 728, 740; 330 NW2d 346 (1982), citing 3 Sands, Sutherland Statutory Construction (4th ed), § 65.03, p 163.
If the maxim expressio unius est exclusio alter ius is applied to the Child Protection Law, plaintiff’s argument that the specifics of the Child Protection Law negate governmental immunity for those persons required to report is reasonable. In Feld v Robert & Charles Beauty Salon, 435 Mich 352, 363, n 11; 459 NW2d 279 (1990), the Court cited the interpretation of the maxim in 2A Sands, Sutherland Statutory Construction (4th ed), § 47.23, p 194:
[.Expressio unius est exclusio alterius] is applied to statutory interpretation, where a form of conduct, the manner of its performance and operation, and the persons and things to which it refers are designated, there is an inference that all omissions should be understood as exclusions. "Where what is expressed in a statute is creative, and not in a proceeding according to the course of the common law, it is exclusive, and the power exists only to the extent plainly granted. Where a statute creates and regulates, and prescribes the mode and names the parties granted right to invoke its provisions, that mode must be followed and none other, and such parties only may act.” The method prescribed in a statute for enforcing the rights provided in it is likewise presumed to be exclusive.
The statute prescribes that the social workers and others are required to report suspected child abuse or neglect. The reporting mechanism is designated, and the listed reporters are assured of immunity for good-faith reporting and are informed of the potential liabilities of failing to report. The list of persons required to report includes many persons who could be government employees. By providing immunity for reporting, the Legislature by specific implication negated other forms of immunity these persons might have.
Even though the immunity status of governmental employees in 1981 was provided by the common law, the general language of the Child Protection Law reveals the Legislature’s intent to apply the statute to the persons listed, regardless of their employment status. A review of the legislative history of the Child Protection Law reveals that the Legislature recognized the need to strengthen the reporting requirement in order to protect abused and neglected children. It was noted that there were many problems caused by delays in reporting incidents of child abuse and neglect under the prior law, which had not required prompt reporting and had required the reporting person to have the child suspected of being abused examined by a physician before reporting the abuse to the dss. House Legislative Analysis, HB 4214, September 26, 1975. This requirement was unreasonable and was difficult to enforce. Id. House Bill 4214, which became 1975 PA 238, the Child Protection Law, strengthened the penalties for persons who were aware of cases of child abuse or neglect and did not report them to the proper authorities. "Some believe that the threat of punishment will encourage more reporting and therefore, protection of the health and safety of more abused and neglected children.” Id.
In 1984 in the analysis of House Bill 4177, which would become 1984 PA 418 and which added psychologists, family therapists, and emergency medical personnel to the list of persons who are required to report, it was noted: "These professionals are in a position to see evidence of abuse in families, and should be required to report to dss so that appropriate action could be taken to ensure the safety of the child.” House Legislative Analysis, HB 4177, May 14, 1984. This amendment brought much opposition from the counseling groups who dealt with abusers, because they wanted the option to retain confidentiality in their communication with their clients and to be able to use their discretion in deciding when reporting would be in the best interests of the child. Id.
When in 1988 further amendments of the act were being considered in House Bill 4157, which would become 1988 PA 372, the therapist groups repeated their opposition to the reporting requirement, claiming that lawyers, priests, and ministers were still exempt from reporting even though they did not provide treatment to abusers. House Legislative Analysis, HB 4157, June 14, 1988. The Legislature stood firm on its position that the rights of children to be safe should prevail, even though reporting inconvenienced some care providers. Through this evolutionary process, the Legislature made clear its intent to have a strong reporting system.
This implied priority system is equally applicable to the governmental immunity argument. If the Legislature’s priority was the safety of children, by implication governmental immunity does not apply to those persons required to report. Although the Legislature did not explicitly exempt social workers, or anyone else, from governmental immunity, it made clear that child safety is a priority and that the needs of the listed professionals are secondary where it comes to reporting. Consequently, our analysis leads us to conclude that through the Child Protection Law the Legislature intended to abrogate established immunity rules of the common law related to persons re quired to report abuse and neglect. Our holding is further supported by the governmental-immunity analysis found in the following section.
ii
Ross provides that when a claim of common-law immunity is asserted by a public employee, a ministerial/discretionary analysis is necessary. Ross at 631-632. Our analysis of whether a decision by a foster-care social worker with regard to the reporting of child abuse and neglect is discretionary or ministerial in nature is consistent with the trial court’s analysis of that issue.
In Ross, supra at 633-634, the Court established that governmental employees are immune from tort liability if they are acting or reasonably believe they are acting in the course of their employment, acting in good faith, and performing discretionary, as opposed to ministerial, acts. Plaintiff argues that even if defendants could claim immunity, the specific reporting conduct is ministerial and not covered by immunity. Defendants claim that the determination what constitutes "reasonable cause to suspect child abuse or neglect” is a discretionary function. They argue that the decision to report involves significant decision making to assess the reasonableness and dependability of the information before a decision to refer could be made. This Court has previously rejected such an argument in the private sector.
In People v Cavaiani, 172 Mich App 706, 714-715; 432 NW2d 409 (1988), this Court rejected a psychologist’s claim that he had to determine whether information he received related to possible child abuse was reasonable:_
We find the words "reasonable cause to suspect” speak for themselves and provide fair notice of the conduct expected in reporting suspected child abuse. Based upon the fact that defendant was told by his patient, the victim, that her father was fondling her breasts, the § 3 reporting provisions are not vague.
In this case, the circuit court suggested that defendant, in the course of exercising professional judgment, might have concluded that the information supplied to him indicating that the victim was being abused was inaccurate or some kind of fantasy. That hardly makes the statute vague or overbroad. Defendant had reasonable suspicion of child abuse, but concluded that his suspicions were not factually founded. With respect to defendant’s legal obligations under § 3, it was not for him to make this determination, but for the responsible investigative agencies, such as the Department of Social Services, to make. While defendant is free to decide that the victim’s allegations are untrue for purposes of rendering professional treatment, he is not free to arrogate to himself the right to foreclose the possibility of a legal investigation by the state. The state has different interests, and its sovereignty is offended by child abuse. [Emphasis added.]
In the present case, defendants stated that their decisions not to refer complaints of neglect were based on their own assessment of the unreliability of the information. Cavaiani refutes that approach. Defendants made an initial referral to protective services in December of 1979, which resulted in protective services making an assessment that the child was in a marginal situation but not at high risk. However, when defendants received subsequent calls from the victim’s sister, and particularly from the foster mother two weeks before Nicole’s death, they made no subsequent referrals, nor did they assess the situation for foster-care placement as they had done for Nicole’s four older brothers and sisters.
Defendants argue that the trial court erroneously focused on the acts needed to file the actual report, rather than the initial decision making, and that they had no duty to supervise or monitor Nicole’s care because she was not a ward of the state. We disagree. The specific acts complained of, rather than the general nature of the activity, must be examined. Ross, supra at 634-635.
Defendants rely on case law that focuses on the involved decision making in placing children in foster homes. Walker v Gilbert, 160 Mich App 674; 408 NW2d 423 (1987); Williams v Horton, 175 Mich App 25; 437 NW2d 18 (1989). In Gilbert v Dep’t of Social Services, 146 Mich App 124; 380 NW2d 74 (1985), this Court found that a protective services worker’s good-faith decision to continue an investigation of child abuse was a discretionary decision and therefore immune from suit. Judge Mackenzie’s concurrence also held that to the extent that the trial court found the immunity section of the Child Protection Law, MCL 722.625; MSA 25.248(5), applicable to the protective services worker she would affirm.
However, the facts before us present the converse of that situation and illustrate the need to make a very clear distinction in the role of the social workers involved. The dss is charged with the responsibility to investigate reported cases of child abuse or neglect. MCL 722.628; MSA 25.248(8). The dss designates a particular entity or unit within the department to investigate reports of suspected child abuse or neglect when received. Those persons who investigate are often social workers. However, the dss also employs social workers in other capacities, such as the foster-care workers in the present case. The role of those social workers is distinctly different from that of protective services social workers in that the protective services worker has the duty to investigate reports, while foster-care social workers only have the duty to report.
The social worker role becomes somewhat blurred when the foster-care worker is already working with a family in placing some of the children and not working with other children in the same family. Case law supports the foster-care worker’s discretionary decision making related to placing children in foster care. Defendants in this case rely on that blur of roles to argue discretionary decision making related to child neglect reports regarding Nicole, over whom they had no jurisdiction. But with no jurisdiction over this child and no apparent plans to obtain jurisdiction over the child, defendants’ roles were governed purely by the Child Protection Law. We find that reporting role under these facts to be ministerial.
In Green v Berrien General Hosp Auxiliary, Inc, 437 Mich 1, 13-14; 464 NW2d 703 (1990), the Court analyzed the role and decision processes of nurses in suctioning a patient’s breathing tube:
[T]he defendants made a series of decisions, but because wide latitude of choice did not exist in respect to acting or failing to act, these decisions are most properly characterized as ministerial. Even ministerial acts require minor decision making and involve some measure of personal deliberation and judgment. However, the test articulated in Ross does not shield such decisions from immunity.
In the present case, the social workers may have made a series of decisions, but the latitude of choices they had was narrow: Do we report suspected child abuse or not? The actual decision concerning the validity of the information was not theirs to make, especially in light of the information regarding the family they then possessed. That was the decision of the protective services workers to whom they were required to report. Consequently, immunity is not applicable under these facts. See Hickey v Zezulka (On Resubmission), 439 Mich 408, 433-434; — NW2d — (1992).
hi
Defendants next claim that the trial court erred in allowing the admission of the past medical records of Josephine Williams. Plaintiffs counsel sought to have excerpts of the medical records related to her hospital commitments between 1969 and 1977 admitted for notice purposes only. Defendants claimed that providing official documents for notice purposes presumes the contents to be accurate and truthful and that they were not properly admitted under any hearsay exception. Initially at trial defense counsel stipulated to the authenticity of the medical records, but subsequently objected on foundation and relevancy grounds. On appeal, defendants raise hearsay objections for the first time. Objections raised on one ground below are insufficient to preserve an appellate attack based on different grounds. People v Michael, 181 Mich App 236, 238; 448 NW2d 786 (1989); In re Davis, 166 Mich App 735, 738; 420 NW2d 872 (1988).
The decision whether to admit evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. People v Watkins, 176 Mich App 428, 430; 440 NW2d 36 (1989); Kochoian v Allstate Ins Co, 168 Mich App 1, 12; 423 NW2d 913 (1988). A trial court’s assessment of the probative value and prejudicial effect of evidence will not be reversed on appeal absent an abuse of discretion. Gillam v Lloyd, 172 Mich App 563, 586; 432 NW2d 356 (1988). Error may not be predicated on an evidentiary ruling unless a substantial right was affected. MRE 103(a); Temple v Kelel Distributing Co, 183 Mich App 326, 329; 454 NW2d 610 (1990). This issue was not preserved, and no substantial right was affected, dss records indicated knowledge of significant mental health problems to the extent to hinder the mother’s ability to parent. At most, the evidence admitted was cumulative. We find no error.
Defendants next claim error in the admission of expert testimony by plaintiff related to schizophrenia, child growth and development, and social work practice. The experts were used to illustrate that the known history of child neglect and mental illness of Josephine Williams should have put defendants on notice, so that any subsequent information about Nicole’s condition that came to their attention should have been considered sufficient to establish reasonable cause to suspect neglect. The testimony of the experts was also used to counter the testimony of defendants’ witnesses. In this case, the testimony of the experts was helpful to the jury in understanding the evidence and making its decision. People v Smith, 425 Mich 98, 105; 387 NW2d 814 (1986); King v Taylor Chrysler-Plymouth, Inc, 184 Mich App 204, 215; 457 NW2d 42 (1990). The trial court did not err in admitting this evidence.
iv
Defendants also claim that the trial court erred in instructing the jury under SJI2d 12.01. The court instructed the jury as follows:
Now, we have, members of the jury, a certain statute which applies to this case. Now, the Child Protection Act provides that: A) Any social worker or social work technician who has reasonable cause to suspect child neglect must immediately by telephone or otherwise make an oral report or cause an oral report to be made to the protective services unit of dss, the Department of Social Services. B) Within 72 hours after making the report, the person making the report must notify the person in charge of their agency. C) Within 24 hours after receiving a report, the protective services unit must commence an investigation of the child suspected of being neglected. D) A person required to report an instance of suspected child neglect who failed to do so is civilly liable for the damages proximately caused by the failure. E) Child neglect means harm to a child’s health or welfare by a person responsible for the child’s health or welfare which occurred through negligent treatment, including the failure to provide adequate food, clothing, shelter or medical care.
If you find that the defendant or defendants or any of them violated this statute before or at the time of Nicole Williams’ death you may infer that the defendants or any of them were negligent. You must then decide whether such negligence was a proximate cause of Nicole’s death.
Defendants argue that the court abused its discretion because that instruction is applicable only to violations of penal or safety statutes and the Child Protection Law does not create or fix a standard of reasonableness. We disagree. The instruction is to be given if a plaintiff has alleged a statutory violation as a ground for negligence and if the statute is intended to protect against the result of the violation, the plaintiff is within the class intended to be protected by the statute, and the evidence will support a finding that the violation was a proximate contributing cause of the occurrence. Note on Use for SJI 12.01, Violation of Statute; Klanseck v Anderson Sales & Service, Inc, 426 Mich 78, 87; 393 NW2d 356 (1986).
The Child Protection Law provides both a criminal penalty and a civil cause of action for proximately caused damages in the event of the failure to make the statutorily required report. MCL 722.633(1) and (2); MSA 25.248(13X1) and (2). The statute was created to protect children from the results of neglect and abuse. Nicole died as a result of neglect. The evidence presented at trial supported a finding that the failure to report the suspected neglect, which would have initiated an investigation and possible removal of Nicole from her mother, could have been a proximate cause of Nicole’s death. The prerequisites for the use of the instruction were met.
The determination whether an instruction is accurate and applicable in view of all the factors present in a particular case is in the sound discretion of the trial court. Murphy v Muskegon Co, 162 Mich App 609, 617; 413 NW2d 73 (1987). There is no error requiring reversal if, on balance, the theories of the parties and the applicable law were adequately and fairly presented to the jury. Weigerink v Mitts & Merrill, 182 Mich App 546, 548; 452 NW2d 872 (1990). After reviewing the jury instructions as a whole, we find that the trial court thoroughly, adequately, and fairly instructed the jury with regard to the law. The trial court did not abuse its discretion.
Affirmed.
Plaintiff originally filed suit against multiple defendants. After numerous motions and appeals, three defendants remained at the time of trial.
The jury awarded $500,000 to the estate of Nicole Williams and $100,000 to each of her four brothers and sisters. Josephine Williams’ claims were dismissed by stipulation and order of the circuit court on January 26,1990. No distribution has taken place pending appeal.
MCL 722.621 et seq.; MSA 25.248(1) et seq.
This cause of action arose in 1981, before the 1986 tort reform amendments of the governmental immunity statute, MCL 691.1407; MSA 3.996(107), which eliminated ministerial/discretionary distinctions.
In 1981, the pertinent part of MCL 722.623(1); MSA 25.248(3)(1) provided:
A physician, coroner . . . certified social worker, social worker, social work technician . . . who has reasonable cause to suspect child abuse or neglect immediately, by telephone or otherwise, shall make an oral report, or cause an oral report to be made, of the suspected child abuse or neglect to the department. Within 72 hours the reporting person shall file a written report as required in this act. [See 1980 PA 511, § 3(1).]
In 1981, MCL 722.633(1); MSA 25.248(13)(1) provided in pertinent part:
A person required to report an instance of suspected child abuse or neglect who fails to do so is civilly liable for the damages proximately caused by the failure. [See 1978 PA 252, § 13(1).]
Boss v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984).
In 1981, MCL 722.625; MSA 25.248(5) provided:
The identity of a reporting person shall be confidential subject to disclosure only with the consent of that person or by judicial process. A person acting in good faith who makes a report or assists in any other requirement of this act shall be immune from civil or criminal liability which might otherwise be incurred thereby. A person making a report or assisting in any other requirement of this act shall be presumed to have acted in good faith. This immunity from civil or criminal liability extends only to acts done pursuant to this act and does not extend to a negligent act which causes person injury or death or to the malpractice of a physician which resulte in personal injury or death. [See 1975 PA 238, § 5.]
In 1981, MCL 722.623(1); MSA 25.248(3)(1) required persons in the following categories to report:
physician, coroner, dentist, medical examiner, nurse, audiologist, certified social worker, social worker, social work techni cian, school administrator, school counselor or teacher, law enforcement officer, and regulated child care provider. [See 1980 PA 511, § 3(1).]
This holding does not preclude other applicable defenses that may be available. | [
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Per Curiam.
The defendant appeals his plea-based conviction of possession of narcotics. MCLA 335.153; MSA 18.1123. We affirm.
The defendant contends that his plea was involuntary. It is well settled that a claim that a plea is not voluntary, not supported by the record, must first be raised in the trial court by an appropriate motion. People v Horvath, 25 Mich App 649 (1970); People v Dorner, 24 Mich App 306 (1970); People v Minson, 24 Mich App 692 (1970); People v Kenny Smith, 20 Mich App 307 (1969); People v Bartlett, 17 Mich App 205 (1969).
The defendant contends that his admission of guilt was equivocal. This contention is not supported by the record.
The defendant contends that he did not validly waive his right to trial by jury. The record shows that the defendant was aware of his right to trial by jury, and therefore, he waived that right by pleading guilty. People v Patterson, 25 Mich App 246 (1970), People v Sage, 30 Mich App 150 (1971). Defendant argues that MCLA 763.3; MSA 28.856 requires that a waiver of a jury trial be in writing. By its terms this statute applies only to trial by a judge and has no application to a guilty plea.
Affirmed. | [
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Levin, P. J.
In 1960, the plaintiff, Joe W. Johnson, entered into a land contract to purchase a home. The defendants, Oscar Wynn and Nathor Wynn, husband and wife, rely on a written assignment of Johnson’s purchaser’s interest in the land contract which purports to have been signed by Johnson on March 1, 1962.
Five years later, on February 23,1967, the instrument of assignment was recorded. Johnson claims that he first learned of the instrument some time later when he went to pay the property taxes on the home and a clerk commented on the transfer of Johnson’s purchaser’s interest.
Johnson commenced this action in July 1968, claiming that he did not sign the instrument and, alternatively, that it was executed without consideration and, therefore, was not binding on him. The trial judge, who sat without a jury, found that the instrument was executed without consideration and entered a judgment declaring it to be null and void.
The defendants raise one issue on appeal. They contend that the judge did not comply with the court rule requiring that he “find the facts specially and state separately [his] conclusions of law thereon”. GOB. 1963, 517.1.
We have previously commented on the importance of adequate fact-finding. In Nicpon v Nicpon, 9 Mich App 373, 378 (1968), we said:
“Clear and complete findings by the trial judge are essential to enable us properly to exercise and not exceed our powers of review.
“ We must know what a decision means before the duty becomes ours to say whether it is right or wrong.’ Mr. Justice Cardozo, for the Court, in United States v Chicago, M S P & P R Co, 294 US 499, 511; 55 S Ct 462, 467; 79 L Ed 1023,1032.”
In McClary v Wagoner, 16 Mich App 326, 328 (1969), we remanded for further fact finding because we were confronted with a conclusory finding in the form of the statutory language. We said:
“We need to know the path the board has taken through the conflicting evidence. The appeal board should indicate the testimony adopted, the standard followed and the reasoning it used in reaching its conclusion.”
Similarly, see Braidwood v Harmon, 31 Mich App 49, 59 (1971), where we said:
“To properly perform our reviewing function we need to know the path the trial judge takes through the conflicting evidence.”
In this case, the judge, in an opinion dictated from the bench, declared that he did not see any need to determine whether the signature on the instrument was a forgery because he was satisfied that the instrument was not supported by valid consideration.
We are persuaded that, although the judge’s findings could have been clearer, they adequately set out the testimony which he adopted and the path which he took through the conflicting evidence. There is no need for further fact finding.
The basic question was one of credibility. It is apparent that the judge believed Johnson’s testimony and did not believe the testimony of Mrs. Wynn who said that she had obtained the assignment in exchange for money paid and cancellation of past indebtedness Johnson owed to her.
While lack of consideration is not ordinarily a defense to the validity of an assignment — the transfer may be entirely donative and yet be valid — here the party asserting the validity of the instrument contended that it was executed for a valuable consideration. In the factual context of this case, the judge’s finding, contrary to the defendants’ claim, that the instrument was not in fact executed for a valuable consideration supports the judge’s conclusion that the instrument should be cancelled.
On March 1, 1962, the date of the assignment, there was a balance of not more than $5,850 owing by Johnson on the land contract. Mrs. Wynn testified that the property was worth $13,000 on that date. She claimed that in return for the assignment she paid bills Johnson owed third persons and can-celled indebtedness of $580 or $780 he owed her. She could not recall the amounts she had paid third persons for Johnson except “500 and some dollars” she had paid for gas and light bills. She also claimed that she had given Johnson money to pay monthly installments to the land contract vendor. She could not produce either cancelled cheeks or receipts or other evidence of payment. She did not claim that she had paid the taxes or insurance premiums. She said that Johnson had asked her to take over the land contract because he could no longer afford to make the land contract payments of $85 a month, but that he continued to occupy the home as her tenant and paid her $100 a month rent.
At the time the instrument was purportedly executed Johnson was 82 years of age. He testified that he had known Mrs. Wynn for 12 years and there had been business dealings between them. He claimed that he had paid the land contract installments, the taxes, and insurance premiums, and denied that the Wynns had contributed to the payment of those obligations. He further denied that he had owed the Wynns any amount and denied that they had paid any of his bills.
In Lewis v Brown, 24 Mich App 252, 256-257 (1970), a similar dispute was presented. There, as here, a person not in possession of the property relied on an assignment of the purchaser’s interest under a land contract and the trial judge concluded that the assignor in possession should prevail. In affirming his decision we said:
“The resolution of the issue presented depends upon one’s appraisal of the credibility of the witnesses. We find nothing in the record which would justify our concluding that the trial judge incorrectly resolved the credibility question.”
Affirmed. Costs to the plaintiff.
All concurred.
See, also, Dauer v Zabel, 381 Mich 555 (1969), reversing on other grounds Dauer v Zabel, 9 Mich App 176 (1967).
Similarly, see 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), Authors’ Comments, p 594:
“The findings of fact must include as much of the subsidiary facts as is necessary to disclose the steps by which the trial court reached its ultimate conclusion on each factual issue. The findings should^ be made at a level of specificity which will disclose to the reviewing court the choices made as between competing factual premises at the critical point that controls the ultimate conclusion of fact. That is, at the point where a given choice as to the concrete facts leads inevitably to the ultimate conclusion, the findings should disclose the choice which was made, so that the appellate court may test the validity of its evidentiary support.”
An examiner of questioned documents testified for Johnson that the signature on the instrument was not Johnson’s. The Wynn’s handwriting expert testified that the signature was genuine.
The judge found that “throughout this entire period of time” Johnson continued to make tax payments, insurance payments, and other payments in the maintenance and operation of the premises. He was not impressed with Mrs. Wynn’s statement that her reason for not notifying the land contract vendor of the assignment until February 1967, was that she had lost the documents. He said that “other methods and other approaches could have been taken to cure this”. It is apparent from this and other statements in his opinion that the judge simply did not believe Mrs. Wynn, and that he did believe Johnson.
13 Am Jur 2d, Cancellation of Instruments, § 21 et seq.; 23 Am Jur 2d, Deeds § 61 et seq. | [
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Van Valkenburg, J.
This is an appeal from an order of the Michigan State Tax Commission affirming an assessment on a certain quantity of steel under the control of the plaintiff, an acknowledged importer of foreign steel, on December 31, 1968, tax-assessment day for the year 1969.
Plaintiff, according to its practice heretobefore, stored the imported metal in various warehouses until it could be sold. One customer Noll Equipment Company placed an order in summer of 1967 for 12,386,390 pounds. Deliveries were made to the Intervale Steel Division of Barry Steel Corporation. After about 600,000 pounds of the material had been used it was discovered that the metal was defective. Thereupon, Noll Equipment Company issued a debit invoice to the plaintiff for 12,09.0,720 pounds. Later, portions thereof were sold to other customers, but there remained in Intervale’s possession under plaintiff’s control 5,627,946 pounds of steel on the above-noted tax-assessment day. Prior thereto, however, on July 18, 1968, plaintiff had directed Intervale Steel by letter to decoil, pickle, oil, and recoil the said steel so as to meet the requirements of an order from the Coil Steel Company.
The plaintiff contends that the subject matter is exempt from taxation by virtue of the immunity granted in US Const, art I, § 10(2). The defendants, on the other hand, assert that the immunity had been lost upon execution of the directives hereinbefore referred to.
In the interest of brevity we quote from Detroit v Kenwal Products, 14 Mich App 657, 659 (1968).
“In Brown v Maryland (1827), 25 US (12 Wheat) 419 (6 L Ed 678), the Supreme Court invalidated a state licensing tax and held that a state could not tax imports as long as the property remained in its original form or package. Low v Austin (1872), 80 US (13 Wall) 29 (20 L Ed 517) expanded the principles of Brown v Maryland to prohibit states from levying ad valorem taxes on goods which have not lost their character as imports. See also City of Detroit v Lake Superior Paper Company (1918), 202 Mich 22. Subsequent to Brown v Maryland, supra, it has become well-established that imports lose their constitutional immunity when the importer (1) sells them or (2) ‘breaks up the packages’ or (3) puts them to the use for which they were imported. Youngstown Sheet & Tube Company v Bowers (1959), 358 US 534 (79 S Ct 383, 3 L Ed 2d 490).”
The plaintiff vehemently argues that the ease at bar is controlled by Detroit v Klockner, Inc 383 Mich 76 (1970). We disagree. There the defendant, also an acknowledged importer, entered into a contract whereby it agreed to furnish the Ewald Steel Company various steel products oh a continuing basis. Several thousand coils of soft steel wire arrived and were stored in a warehouse. The City of Detroit thereupon levied a personal tax in the sum of $27,460. However, the wire had been damaged by salt water somewhere enroute. Ewald examined the same and promptly rejected it. There the similarity ceases, for the steel therein was still in the original packages and had not been prepared for resale.
The words “original package” have been defined in 15 CJS, Commerce, § 28, p 493, as follows:
“An original package, as applied to interstate and international commerce, is a package, bundle, or aggregation of goods, put up in whatever form, covering, or receptacle for transportation, and as a unit transported from one state or nation to another. It is the identical package delivered by the consignor to the carrier at the initial point of shipment, in the exact condition in which it was shipped.”
This quantity of steel herein considered had been in the possession of the plaintiff for more than a year. Naturally, plaintiff was interested in disposing of the same ; and to that end, the necessary improvements were made as per the letter of July 18, 1968. The words “decoil, oil and recoil” are of common usage and understanding, but “pickle” requires some explanation. The term is defined in The American College Dictionary as follows:
“An acid or other chemical solution in which metal objects are dipped to remove oxide scale or other adhering substances.”
These activities were carried on at the express direction of the plaintiff in order to secure a resale. The steel was no longer in the original packages and was prepared by this process for sale to the Coil Steel Company as hereinbefore referred to.
Since the preparation of this steel necessitated the breaking of the original packages, this steel lost its character as an import and was therefore properly subject to the Detroit tax.
The plaintiff further contends that if the metal as processed is subject to taxation, it in truth and in fact had been sold. Nevertheless, the steel was under its control and in its constructive possession. The pertinent part of MCLA 211.47; MSA 7.91 provides as follows:
“Provided, that when any person having possession of the personal property of any other person, firm or corporation shall be assessed for such property, and shall be obliged to pay the taxes thereon, such person, firm or corporation so paying the taxes, may recover of the person, firm or corporation for whose benefit the taxes were paid, the money so paid, with the interest thereon in an action of assumpsit.”
The decision of the Michigan State Tax Commission is hereby affirmed. No costs.
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Per Curiam.
This matter has been before this Court on a prior occasion. African Methodist Episcopal Church v. Shoulders (1971), 31 Mich App 290. Upon remand the trial judge, over objection, granted plaintiffs’ motion, to dismiss their complaint pursuant to GCR 1963, 504.1(2). No terms or conditions were attached to the order of dismissal. Defendants appeal.
Plaintiffs argue that the grant or denial of a voluntary dismissal is within the sound discretion of the trial judge. Roberson v. Thomas (1968), 13 Mich App 384. We agree; however, in exercising that discretion the trial judge is to weigh the competing interests of the parties along with any resultant inconvenience to the court from further delays. Gromger v. Lundberg (1971), 32 Mich App 462. Normally, such a motion should be gianted unless defendant will be legally prejudiced as a result. Durham v. Florida East Coast Railway Co. (CA5, 1967), 385 F2d 366. As the purpose of GCR 1963, 504.1(2) is to protect defendant from the abusive practice of dismissal after much time and effort has been put into a lawsuit, any dismissal should be on terms and conditions which protect defendant. See American Cycnamid Co. v. McGhee (CA5,1963), 317 F2d 295.
Applying these principles to the instant case, we find the order of dismissal to be in error. Defendants terminated their church membership pursuant to a court order sought by plaintiffs. This Court has stated that defendants have a valid defense to plaintiffs’ complaint. If plaintiffs do not wish to pursue their complaint, then a dismissal should seek to return the parties to their positions prior to the inception of this lawsuit. Further, the fact that defendants have not filed a counterclaim is immaterial. Defendants have a right to an adjudication of this suit. They should not be forced to bear the expense of a new lawsuit in which they would he plaintiffs. Plaintiffs’ other contentions are frivolous. The order to dismiss is set aside and the matter remanded for trial, or, if the plaintiffs renew their motion, it shall he granted only upon such terms and conditions as will place the parties in the same positions they occupied prior to the inception of this suit. GCR 1963, 504.1(2).
GOR 1963, 504.1(2) is based on FR Civ P 41(a)(2). Since there is little case law in Michigan on this rule, we look to the Federal eases for guidance in this instance.
Plaintiffs’ reliance on defendants’ failure to file a counterclaim is misplaced. That part of the court rule dealing with counterclaims applies only when one has been filed. The rule, however,_ is not to be read to mean that a plaintiff has an absolute right to dismissal if a counterclaim is not filed. Such a reading would be contrary to the rule’s purpose. | [
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Bronson, J.
Plaintiff Terry Gamet is a 15-year-old schoolboy. On October 13,1969, he and a group of his friends attempted to cross Jolly Road in the City of Lansing on their way from their school to a McDonald’s hamburger stand five to six blocks northeast of the school. Jolly Road is a two-way street, two lanes east and two lanes west. At the time it was slightly raining. Plaintiff crossed the two eastbound lanes between intersections and stopped at a double yellow center line. Defendant Jenks was stopped in the inside westbound lane of Jolly Road. In response to a wave by defendant Jenks, plaintiff proceeded at a pace somewhere between a walk and a run across .the inside westbound lane into the outside westbound lane; there plaintiff was struck by a vehicle driven by defendant Converse and owned by defendant Tuttle. The point of impact was at least six inches into the outside westbound lane of J oily Road.
Defendant Converse had been proceeding in a westerly direction on Jolly Road at about 25 miles per hour about two or three car lengths behind defendant Jenks. When defendant Converse saw defendant Jenks’ brake lights go on he applied his own brakes and at the point of contact was going five miles per hour. He brought the car to a standstill within a one-hálf car length of the point of impact. Plaintiff rolled up onto the car’s hood and agáinst the windshield prior to falling to the pavement.
On the basis of testimony elicited at the adverse examination of plaintiff and interrogatories of defendant Converse, defendants moved for summary judgment under G-CR 1963, 117.3. The trial court granted summary judgment in favor of defendants, stating,
“Plaintiff’s cause of action against the pick-up driver, Jenks, is based upon the alleged hand signal by Jenks waving the plaintiff across the street. The plaintiff has admitted in his'deposition that he did not rely upon the hand signal of Mr. Jenks in proceeding into the lane of traffic where he was struck by a car.
“There is no other evidence, either contested or otherwise, which would support plaintiff’s cause of action. Therefore, the court is of the opinion that the motion for summary judgment should be, and the same hereby is, granted, to defendant, Jenks.
“The plaintiff, in a motion for summary judgment alleging no genuine issue of fact, must establish a prima facie case with supporting affidavits. (See 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 363). In the case against Tuttle and Converse, there is nothing in the file showing any negligence on their part except the complaint. There is the affidavit of Justin Converse saying that he was without negligence in driving his car and his answer to interrogatories which said that his car was moving five (5) m.p.h. at the time of the accident. There are no material facts, either contested or uncontested, which would support plaintiff’s case. Therefore, the court is of the opinion that the motion for summary judgment should be, and the same hereby is, granted, as to Tuttle and Converse.”
The only issue raised on appeal is whether the trial judge erred as a matter of law in granting summary judgment to these defendants. At the outset we note that as a general rule summary judgment is inappropriate in negligence actions. This is because conformance to or violation of a standard of behavior is peculiarly within the province of a jury. Miller v. Miller (1964), 373 Mich 519. Only in rare instances will it be found that no “genuine issue of fact” exists so that a judge may determine negligence as a matter of law.
In determining whether summary judgment is appropriate, we make all inferences in favor of the party opposing the motion. Beardsley v. R. J. Manning Co. (1966), 2 Mich App 172. The court is required to consider affidavits filed for and against summary judgment, together with the pleadings, depositions, admissions, and documentary evidence submitted by the parties. GCR 1963, 117.3; Green v. Lundquist Agency, Inc. (1966), 2 Mich App 488. With these general principles in mind, we proceed to a consideration of the instant case.
Defendants Converse and Tuttle
Plaintiff contends that the evidence presented to the trial court raised clear issues of fact as to defendant Converse’s negligence. He argues that Converse did not exercise reasonable care under the existing conditions to enable him to stop his car in time to avoid hitting plaintiff. This is the essence of the pleadings against defendants Converse and Tuttle. In response to plaintiff’s interrogatories, defendant Converse described his version of the accident. Following an adverse deposition of plaintiff, these defendants moved for summary judgment. This motion was accompanied by defendant Converse’s affidavit and a memorandum in support of the motion.
The affidavit denied liability and affirmatively stated that plaintiff failed to make a meaningful observation in crossing Jolly Road and that he failed to cross at a designated crosswalk. The memoran dum went into greater detail as to what facts would be proved to support the denial of liability and plaintiff’s contributory negligence.
Affidavits in support of and opposing summary judgment must set forth with particularity facts which would be admissible as evidence at a trial. Durant v. Stahlin (1965), 375 Mich 628. On the whole, we believe that affidavit and memorandum filed by defendants Converse and Tuttle were sufficient. They state facts which could be personally testified to.
The plaintiff, having been challenged as to how he would build his case against these defendants, was bound to respond with a particularized statement of facts. Durant v. Stahlin, supra; Christy v. Detroit Edison Co. (1966), 2 Mich App 730. Plaintiff responded with the same allegations he had made in his pleadings and an affidavit which reiterated the same position he had taken in his deposition as to defendant Converse’s actions.
The trial judge, faced with this set of proofs, had to take defendant Converse’s allegations as true. The only difference as to how the accident occurred was whether plaintiff ran into or was hit by defendant’s car. On the facts stated, we agree that plaintiff has failed to state a prima facie case against defendant Converse. The evidence indicates that he was driving in a lane of traffic he had a right to be in. He slowed to five miles per hour on seeing defendant Jenks’ brake lights go on and stopped almost immediately after the impact. There is no supporting evidence to indicate that he should have been aware of plaintiff’s presence in the street. On seeing defendant Jenks’ brake lights go on, he proceeded with caution. He is not, however, bound to anticipate that a minor will come loping into his lane of traffic when he is unaware of the child’s presence. See Houck v. Carigan (1960), 359 Mich 224; Nagy v. Balogh (1953), 337 Mich 691.
Defendant Jenks
The plaintiff’s contention with respect to defendant Jenks is that he relied on Jenks’ signal to proceed across the westbound lanes of Jolly Road. Jenks denies having made such a signal in his affidavit.
The crux of plaintiff’s case is that defendant Jenks’ motion to him, without consideration for his safety, was negligent and the proximate cause of his injuries. In his deposition, plaintiff unequivocally stated that he thought the signal meant he could cross in front of defendant’s truck up to the lane dividing line. This statement was made several times, including in response to his own attorney’s questions. In his affidavit opposing summary judgment, the plaintiff stated that he relied on Jenks’ signal to proceed across the highway. He did not attempt to explain the reason for his contrary deposition testimony.
In Michigan, a driver who waves a pedestrian across a street where he is hit by another driver may be liable for the pedestrian’s injuries. Sweet v. Ringwelski (1961), 362 Mich 138. In Ringwelski, the Supreme Court indicated that it is not for the trial judge to decide the intended meaning of such a wave to a pedestrian. The answer is for the jury and determines liability. In the instant case, plaintiff’s deposition indicates he did not think he was being told to cross the highway. The trial judge relied on this in granting summary judgment for the defendant. In most cases it would be error for the trial judge to disregard plaintiff’s affidavit completely. See Camerlin v. New York C. R. Co. (CA 1, 1952), 199 F2d 698; Firemen’s Mutual Insurance Co. v. Aponaug Manufacturing Co. (CA 5, 1945), 149 F2d 359. We do not find reversible error in this instance. Onr holding is based on the belief that plaintiff’s rebutting affidavit is insufficient for consideration under GCR 1963 117.3.
As a result of his own deposition testimony, plaintiff’s ability to present a case was challenged. His affidavit merely restated his pleadings. Deposition testimony damaging to a party’s case will not always result in summary judgment. However, when a party makes statements of fact in a “clear, intelligent, unequivocal” manner, they should be considered as conclusively binding against him in the absence of any explanation or modification, or of a showing of mistake or improvidence. Southern Rendering Co. v. Standard Rendering Co. (ED Ark, 1953), 112 F Supp 103, 108. The purpose of GCR 1963, 117 is to allow the trial judge to determine whether a factual issue exists. 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), 1969 Cum Supp, p 51. This purpose is not well served by allowing parties to create factual issues by merely asserting the contrary in an affidavit after giving damaging testimony in a deposition. As was stated in Perma Research and Development Co. v. The Singer Co. (CA 2, 1969), 410 F2d 572, 578:
“If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.”
In Durant v. Stahlin (1965), 375 Mich 628, our Supreme Court warned against the zealous overuse of the summary judgment procedure. However, it also made clear that once a party is challenged, mere allegations on rebuttal are not enough. Du rant, supra, at 640. Had plaintiff offered any reason for the contradiction we would he constrained to reverse. We read his affidavit as a general allegation without explanation.
Affirmed.
All concurred. | [
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Lesinski, C. J.
Defendant was convicted, on her plea of guilty, of attempted uttering and publishing, MCLA 750.249; MSA 28.446. She appeals as of right.
Defendant alleges that the trial court erred in two respects in accepting her plea of guilty. It is maintained that the trial court f ailed to ascertain whether the plea was truthful, in compliance, with MCLA 768.35; MSA 28.1058; and GCR 1963, 785.3. Also, defendant contends that the trial court committed, reversible error when it failed, before accepting her guilty plea, to advise her of her constitutional right to a trial by jury, to remain silent, to confront her accusers, and to be proven guilty beyond a reasonable doubt.
Contrary to defendant’s allegation, the trial court did examine defendant to determine whether her plea had a factual, basis. The trial court elicited from defendant the fact that she received a factory check from Lawrence Cage which he made out for her. Cage told defendant that she could retain a portion of the proceeds from the check if she would cash it for him. She then attempted to cash it.
However, to be guilty of attempted uttering and publishing, the accused must have knowledge that the instrument is false, forged, altered, or counterfeit. 3 Gillespie, Michigan Criminal Law and Procedure (2d ed), Forgery and Counterfeiting, § 1506, p 1882. The trial court did question defendant as to whether she had knowledge that she was cashing a bad check in this case. The following exchanges transpired on that point:
“The Court: Did you know it was a bad check when he gave it to you?
“Defendant: No.
“The Court: When did you find out ?
“Defendant: The police told me.
“The Court: The police told you?
“Defendant: Yes.
# # #
“The Court: Did he explain it enough when he gave you this check so you knew it was a bad check, Mrs. Neal?
“The Court: What?
“Defendant: He say it was, that he had a lot of checks, but I needed the money, if I could cash it I could take some of it out and take it home with me, so I could feed my family.
“The Court: Mrs. Neal, you are perfectly intelligent and sensible person; what did you know when he told you that?
■ “Defendant: All I know he was helping me.
“The Court: Now, did you have an idea or reason to believe that the check was no good?
“Defendant: Yes.
“The Court: Tell me honestly.
“Defendant: Yes.”
Defendant cites People v Richard E Johnson, 8 Mich App 204 (1967), as authority for the proposition that the trial court should reject a guilty plea when defendant’s answers are equivocal in nature. Examining the instant proceedings in their entirety, however, we.are convinced that this is a different case from Johnson. Although defendant initially denied she had knowledge that she was being given a bad check, she immediately recanted and admitted Mr. Cage had told her the instrument was faulty. She revealed he also told her “that he had a lot of checks”. In Johnson, supra, defendant repeatedly negated his guilt, anld only through the careful leading of defendant’s own counsel and the trial court were the facts arranged to coincide with the elements of the charge. There was no such overreaching by the trial court or defendant’s counsel here. The Johnson case does not hold that a trial court must reject a guilty plea whenever a defendant initially denies one of the elements of the offense. If defendant later admits that element of the offense, and the existence of that element appears consistent with the entirety of defendant’s testimony, the trial court may still accept the plea.
Defendant also nrgeS that the plea was not truthful, because the trial court should have been alerted as to the existence of the defense of coercion and duress. This Court has held that :
“Where the accused is represented by adequate counsel, the trial court need not make exhaustive examination as to possible defenses, even if the testimony of the accused gives some indication that such a defense might be raised at trial.” People v Edwards, 27 Mich App 83, 85 (1970).
Accordingly, defendant’s contention on this ground is rejected.
Defendant further argues that the trial judge was required, under the holding of Boykin v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969), to advise defendant of her right to a trial by jury, right against compulsory self-incrimination, and right to confront one’s accusers, and additionally, to receive waivers of those rights on the record. The trial court in this case advised "defendant only of her right to a trial by jury.
However, this Court has held that “Boykin does not require the specific enumeration and waiver of the three Federal constitutional rights listed before a guilty plea can be accepted”. People v Sepulvado, 27 Mich App 66, 69 (1970); People v Jaworski, 25 Mich App 540 (1970). See, also, dissent of Lesinski, C. J., in Sepulvado and Jaworski.
Defendant also claims that the trial court should have advised her of her right to be found guilty beyond a reasonable doubt upon a trial either by the jury or the court. We similarly reject this argument. GCR 1963, 785.3 and Boykin, supra, are sat isfied, based on the rationale of Sepulvado and Jaworski, upon a proper determination by tbe trial court that the plea was voluntarily and understandingly made.
Affirmed.
O’Hara, J., concurred. | [
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Lesinski, C. J.
Plaintiffs Timothy T. Simmons and Arlene L. Simmons brought this action challenging the validity of defendant’s zoning ordinance which restricted plaintiffs’ lots to single-family dwellings. The trial judge sitting as trier of fact held the ordinance unconstitutional and permanently restrained the defendant from preventing the erection of a 13-unit multiple structure. Defendant appeals as of right.
Defendant contends that the finding of the trial court that single-family residential zoning of plaintiffs’ property is invalid as falling outside the statutory zoning powers was erroneous.
In Bristow v Woodhaven, 35 Mich App 205 (1971), this Court acknowledged the existence of a favored-use classification of land in Michigan which shifts the burden of proof to the municipality to prove a restrictive zoning ordinance valid.
“A review of the cases indicates that certain uses have come to be recognized as advancing the general public interest; such recognition is found in our State Constitution, statutes, judicial precedents,or a combination of these factors, * * * where a proposed use has acquired a ‘favored’ status and is appropriate for a given site, the presumed validity of a restrictive local ordinance fades and the burden shifts to the municipality to justify its exclusion.” Bristow, p 212.
This Court in Bristow found that tbe prior judicial recognition of mobile home parks as a legitimate use of land combined with the housing shortage in Michigan gave mobile home parks a “favored” status. As such, the municipality had the burden of proving the validity of the ordinance which excluded mobile home parks.
Multiple-dwelling developments have been recognized as a legitimate use of land. Tel-Craft Civic Ass’n v Detroit, 337 Mich 326 (1953). The same housing needs which would justify mobile home expansion apply with equal force to multiple dwellings. In Girsh Appeal, 437 Pa 237; 263 A2d 395 (1970), cited with approval in footnote 6 in Bristow, the Court held unconstitutional the exclusionary zoning-out of multiples. Accordingly, we find that the use of land for multiple dwellings must be given the same “favored” status that it would have if used for mobile homes. Consequently the burden of proof rests on the municipality to prove the validity of any ordinance which would operate to exclude multiple dwellings.
The trial court held defendant’s zoning ordinance unconstitutional as applied to plaintiffs’ land on the basis that it bore no reasonable relationship to the public health, safety, and general welfare.
“I am persuaded by all the testimony that I have heard and the viewing of the properties, there is no relationship in this zoning for these particular lots to over-crowding of land, avoidance of congestion of population, or problems of transportation, sewage disposal, water, education, recreation or any other public requirements.
“To my mind, the plaintiffs have met the burden of proof by a fair preponderance of the evidence to show quite to the contrary. I do not accept the testimony of the defendant.”
A careful review of the record supports the trial judge’s position. As the Michigan Supreme Court stated in Alderton v Saginaw, 367 Mich 28, 34 (1962):
“In zoning appeals we give weight and careful consideration to the findings of the lower court who heard the testimony, saw the exhibits and, in most instances, is familiar with the area in dispute.”
In Bristow, p 219, this Court noted:
“Where favored uses are concerned it is for the trial court to assess, upon presentation of all proofs, whether local zoning serves to promote or inhibit the public health, safety, morals, or general welfare.”
In the case at bar the trial court pointed out:
“The statute referred to, 125.583, Michigan Compiled Laws, in its last wordage says, ‘and to promote public health, safety and general welfare.’ Using this yardstick, the court is unable to discern, as asserted by the city, any relationship to holding the properties in question to single-family homes when almost adjacent to these lots we have multiple dwellings.”
This Court is in accord with the trial judge’s findings in this matter. This conclusion is amply supported by the following: (1) there is no possibility of developing these lots by erection of single homes except at a monetary loss; (2) the lots in question were platted in 1914, over one-half century ago, and are still vacant lots; and (3) the character of the area is suited to multiple-dwelling development as indicated by the existence of multiple dwellings almost adjacent to these lots.
In view of the nature of the proposed use involved herein and the failure of defendant’s proofs to justify its exclusion of that use, we uphold the trial court.
Affirmed.
All concurred. | [
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Memorandum Opinion.
Defendant pleaded guilty to assault with intent to rob, being armed. MCLA 750.89; MSA 28.284. He was sentenced to 5 to 20 years in prison and appeals.
An examination of the record and briefs discloses no prejudicial error.
Affirmed. | [
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Memorandum Opinion.
The defendant was convicted of second-degree murder (MCLA 750.317; MSA 28.549) upon a non-jury verdict.
An examination of the record and briefs discloses no prejudicial error or miscarriage of justice.
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Memorandum Opinion.
Defendant pleaded guilty to larceny in a building and appeals. A motion to affirm has been filed by the people.
Upon an 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. See People v Godsey, 35 Mich App 399 (1971).
Motion to affirm granted. | [
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O’Hara, J.
Plaintiff appeals from a summary judgment entered against her in an action in which she alleged a common-law marriage to defendant and from which she sought a divorce.
It must be said in complete candor that plaintiff, on her pretrial deposition, contradicted virtually every material allegation in her complaint.
However, after the motion for summary judgment was made, plaintiff filed an affidavit in opposition thereto. In it she attested that all of her answers to questions posed at the taking of her deposition were wrong. She reasserted the substance of her complaint. She attributed her answers in the deposition to the fact that she was lately out of a hospital and was heavily medicated at the time she answered the questions.
We hasten to add that this claim was not made known to defense counsel before she was deposed. His questioning was a model of propriety. He did not deprive ber of an opportunity to consider and reconsider ber answers.
We have concluded after reading the deposition that, if plaintiff was not under the influence of a sedative at the time she was deposed, her comprehension level was somewhat restricted. She answered a number of crucial questions with questions hack to examining counsel. She constantly transposed the terms “married” and “common lawed”. She appeared to distinguish the term “slept with” from marital consummation.
It is to us simply impossible to tell what she did mean by most of her answers. We think in the interest of justice a hearing on the merits should be had.
We confine our holding here eocpressly to the peculiar facts of this case. The holding is of negligible precedential value anyway because the Legislature eliminated common-law marriages effective January 1, 1957. Her common-law marriage was alleged to have occurred in June, 1956.
In this case, as in all cases where summary judgments are vacated, we intimate no. opinion on the merits.
We vacate the summary judgment and remand for hearing on the merits. Under the peculiar circumstances of this case, we award no costs.
All concurred.
MCLA 551.2; MSA 25.2. | [
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