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Memorandum Opinion.
Plaintiff was awarded $2,239 by a jury for injuries received in a truck-bus collision. She moved for additur or in the alternative for a new trial. Both motions'were denied. From the judgment and the denial of the motions for additur and new trial she appeals.
An examination of the record discloses no reversible error.
Affirmed. | [
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Van Valkenburg, J.
This appeal, carrying a question of first impression in this state, involves an interpretation of certain .sections of the so-called tenants’ rights legislation enacted in 1968.
The parties hereto entered into a written lease for a given piece of property in Ann Arbor, Michigan running from May 29, 1969, to May 1,1970.
The plaintiff began an action in the district court on November 13, 1969, for the purpose of recovering possession of the said premises on the basis of an alleged default in payment of rent. Defendants admitted possession, but claimed that the nonpayment was justified because of alleged breaches of the covenants on the part of the plaintiff to keep the premises in reasonable repair and to comply with the applicable health and safety laws.
Plaintiff then moved for a summary judgment on the question of possession, which was denied by the district court, which held:
“The court finds that breaches of the statutory covenants to (1) repair the premises, and (2) comply with the health and safety laws, are breaches of the lease which excuse the payment of the rent under the above statute.”
Plaintiff sought, and was granted, leave to appeal the district court’s denial of summary judgment to the circuit court. The circuit court reversed the district court’s denial of summary judgment, holding that the covenant to pay rent was independent from the statutory covenants to repair and comply with health and safety laws, and that the breach of such covenants did not excuse the pay ment of rent and was not a defense in a summary proceeding to regain possession based upon nonpayment of rent.
Prior to the above-noted decision of the circuit court, the tenants vacated the premises and moved to dismiss the circuit court appeal on the ground of mootness. The circuit court denied the motion to dismiss because of the great importance of the issue involved. After the trial court rendered its decision, defendants sought leave to appeal to this Court. This Court, being advised of the attendant circumstances and aware of the possible mootness, granted leave to appeal. We, therefore, feel constrained to render an opinion on the merits, even though such an opinion may be construed to be in the form of a declaratory decree. See Robson v Grand Trunk W R Co, 5 Mich App 90 (1966); Lafayette Dramatic Productions, Inc v Ferentz, 305 Mich 193 (1943).
The question tiras presented in this appeal is:
Was the landlord’s motion for summary judgment on the question of possession properly denied, where- the tenants claimed that their nonpayment of rent was justified by the landlord’s breach of the covenants to repair and comply with the health and safety laws?
To understand the thrust and impact of the tenants’ rights package of statutes, it is first necessary to understand the common-law remedy. At common law the covenant to pay rent was independent from the covenants to- repair and comply with any health or safety laws or regulations. The effect of the independence of these covenants- was to make the payment of rent a mandatory requisite to continued possession by the tenant. In other words,, breach of the covenant to repair was not a defense in an action by the landlord to recover possession for nonpayment of rent. See 49 Am Jur 2d’, Landlord and Tenant, § 617, p 589; 50 Am Jnr 2d, Landlord and Tenant, § 1238, p 120; 28 ALR2d 446, § 2, p 452; Reaume v Wayne Circuit Judge, 299 Mich 305 (1941).
The circuit court, in reversing tbe district court, thus properly stated the long-standing common-law rule. The question thus becomes: Was the common-law rule changed by the statutory enactment? Every lease of a residential premises must now contain a covenant on the part of the landlord to keep the premises in reasonable repair and to comply with applicable health and safety laws. The inclusion of the covenants to repair and comply with safety laws is no longer a matter of individual contract but one of statutory mandate.
Mindful of the Legislature’s indication that MCLA 554.139; MSA 26.1109 should be “liberally construed”, we hold that these statutorily required covenants are mutual with, rather than independent of, the covenant to pay rent. In the event of a breach on either side, the injured party has recourse to the courts. Once there, the judge must hear the evidence and decide the merits or demerits of the alleged claims, in the same manner as in any other matter involving a duly executed contract.
Although we deem that the covenants to repair and to comply with safety and health laws are mutual covenants with the convenant to pay rent, the question still remains whether the breach of those covenants is a defense which may be raised in an action to recover possession. Summary proceeding to recover possession may be instituted where “rent shall have become due * * * and the tenant or person in possession shall have neglected or refused for 7 days after demand of the possession of the premises * * * to deliver up possession of the premises or pay the rent so due”. MCLA 600-.5634(2); MSA 27A.5634(2). Under prior practice it was necessary for the landlord to show only that there had been nonpayment of the rent and that a demand for the possession was made seven days prior to instituting proceeding to allow summary granting of possession to the landlord. '
Thus, under prior practice the tenant could raise no affirmative defenses on his behalf in an action by the landlord to regain possession for nonpayment of rent. The only defense was^ payment of the rent. 1968 PA 297, however, revolutionized the rights of the tenants in this respect. MCLA 600.5637(5); MSA 27A.5637(5) now allows the tenant to raise the question of a breach of the lease by the landlord “which excuses the payment of rent”. While the phrase, “which excuses thq payment of rent”, is undefined, it is clear from an examination of the language of MCLA 600.5646(3); MSA 27A.-5646(3) that the Legislature intended that cmy defense which the tenant may have can be raised in the proceeding brought by the landlord to regain possession for alleged nonpayment of rent.
The intent of the new language is clear. Tenants may now raise any defense, which would justify the withholding of rent, in an action by the landlord to regain possession for nonpayment of rent. Upon motion by either party, the court shall determine if summary judgment of possession should be granted to the moving party. If, as here, the trial court determines that the tenants’ counterclaim raises a substantial question of fact, the court should deny the landlord’s motion for summary judgment and the question of possession will thereby abide the determination of the ease on the merits.
One question raised by counsels for both parties in their oral argument before this Court was whether payment of rent must be made during the pendency of the landlord’s action, after a motion for summary judgment of possession has been denied. While we recognize the fear on the part of the landlord of the possibility that the tenant may be uncollectible or unavailable by the time that the cause is litigated on the merits, we note that the Legislature has provided that upon appeal to the circuit court from the denial of summary judgment (or granting of summary judgment to the tenants), the landlord may demand a bond sufficient to cover all past due rent, future rent and costs. Thus, if the landlord is aggrieved at the denial of his motion for summary judgment of possession, he may seek leave to appeal to the circuit court and thereby be secured as to any rent that comes due. It would be hoped that in most cases an adjudication on the merits could be had in an expeditious manner, so that security for future rent would be of little consequence.
The .district court properly denied the motion for summary judgment of possession; there being a substantial question of fact raised by the counterclaim of defendants.
The order of the circuit court is hereby reversed. No costs, a statutory interpretation being involved.
All concurred.
The so-called “tenants’ rights package” involved six separate acts:
1968 PA 112; MCLA 564.101 et seq; MSA 26.1300(101) et seq.
1968 PA 267; MCLA 125.694a; MSA 5.3054(1).
1968 PA 286; MCLA 125.521 et seq; MSA 5.2891(1) et seq.
1968 PA 297; MCLA 600.5634; MSA 27A.5634.
1968 PA 295; MCLA 554.139; MSA 26.1109.
1968 PA 344; MCLA 125.699 et seq; MSA 5.3056(3) et seq.
1968 PA 295; MCLA 554.139; MSA 26.1109 provides:
“(1) In every lease or license of residential premises, the lessor or licensor covenants:
“(a) That the premises and all common areas are fit for the use intended by the parties.
“(b) To keep the premises in reasonable repair during the term of the lease or license, and to comply with the applicable health and safety laws of the state and of the local unit of government where the premises are located, except when the disrepair or violation of the applicable health or safety laws has been caused by the tenants wilful or irresponsible conduct or lack of conduct.
“(2) The parties to the lease or license may modify the obligations imposed by this section where the lease or license has a current term of at least 1 year.
“(3) The provisions of this section shall be liberally construed, and the privilege of a prospective lessee or licensee to inspect the premises before concluding a lease or license shall not defeat his right to have the benefit of the covenants established herein.”
The reason for including the requirement of these covenants in every residential lease is pointed out in Schier, Draftsman: Formulation of Policy, 2 Prospectus, A Journal of Law Reform 227, 233 (1968):
“Even though the state Housing Law imposes on the owners of all dwellings a general duty to repair, that obligation ordinarily does not give rise to implied or constructive contractual obligations on which the tenant may rely. Therefore it was felt necessary to establish as a matter of law the landlord’s promissory duty to make the premises fit for habitation at the time of taking possession and throughout the term of period of tenancy.”
Schier, supra (see fn 3), 235, 236 indicated:
“Under the prior law the landlord had the right to onst the tenant when the tenant held over at the end of the term, or after notice to qnit in the case of periodic tendencies and estates at will or by sufferance; when the tenant held over contrary to the terms or conditions of his lease; when rent had come due and the landlord’s obligation to demand payment was waived in writing; and when rent came due and the tenant refused to pay or relinquish possession of the premises for seven days after notice to quit.”
MCLA 600.5637(5); MSA 27A.5637(5) provides:
“Upon proper motion for summary judgment on the pleadings, either party may obtain judgment on the elaim for possession. The motion shall be determined independently and without prejudice to any other claims or counterclaim. For the purpose of this paragraph a claim for possession for nonpayment of rent is deemed to include, without limitation thereto, the following issues:
“(a) That the defendant has paid the rent due.
“(b) That the plaintiff has committed a breach of the lease which excuses the payment of rent.”
MCLA 600.5646(3); MSA 27A.5646(3) provides:
“When proceedings are commenced under this chapter to regain possession following the alleged termination of a tenancy for nonpayment of rent, the defendant, in an appropriate pleading, may state such defense as he may have upon the lease or contract, or against the opposing party.”
The nature and effect of the tenant’s counterclaim is cogently summarized by Schier, supra (see fn 3), 237:
“The tenant need only persuade the court that the failure of the landlord to repair, if that is the case, is a substantial breach of contract, giving rise to a failure of a constructive condition precedent to the duty to pay rent. Since a statutory covenant to repair is implied, the task of persuasion should not be difficult. The new section of the Summary Possession Law implicitly recognizes these statutory covenants as it permits that ‘the defendant may state such defenses as he may have upon the lease or contract, or against the opposing party.’ Extended pleadings are now permitted, as the law states that ‘the defendant may file any responsive pleading permitted by the court rules.’ ”
MCLA 600.5670(3); MSA 27A.5670(3), which provides:
“The bond shall be conditioned that the defendant will forthwith pay all rent due or to become due the plaintiff for the premises described in the complaint, or the rental value thereof, together with costs, if the plaintiff prevails.” | [
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AFTER REMAND
Before: Neff, P.J., and Gribbs and Murphy, JJ.
Per Curiam.
Defendant appeals from an order granting plaintiffs’ motion for costs. We vacate and remand for a redetermination of costs.
This case arises from a December 31, 1980, incident in which plaintiffs claim that defendant intentionally fired a gun at plaintiff Eddie Webb. In plaintiff’s hurry to get away, he tripped over a log, hurting his big toe and his back. On January 6, 1982, plaintiffs filed this action against defendant, alleging that, as a result of those injuries, plaintiff could no longer work at his construction job.
Although defendant was apparently served with notice of the action, he failed to appear. The circuit court entered a default judgment against defendant in the amount of $15,000 and issued a writ of garnishment against defendant’s bank account.
In August 1985, defendant moved to set aside the writ of garnishment and the default judgment. Defendant stated in his affidavit that he was eighty-four years old, had poor hearing and eyesight, and had never been served in this case. Defendant further stated that the Recorder’s Court judge who had dismissed the related criminal charge against him of reckless use of a firearm had told him that the entire matter was concluded. Defendant also stated that at the time of the shooting, he was afraid of plaintiff, whom he knew to be violent, and that plaintiffs were his tenants and were eight months behind on their rent and had avoided eviction.
The circuit court denied defendant’s motions, finding that he had not demonstrated good cause for setting aside the judgment. In an unpublished opinion per curiam, decided June 13, 1988 (Docket No. 90935), this Court set aside the default judgment and remanded for further proceedings, concluding that the circuit court abused its discretion when it denied the motion to set aside the default judgment.
On remand, plaintiffs moved for costs pursuant to MCR 2.603(D)(4) and 2.625(D)(1), requesting attorney fees and costs. The circuit court awarded plaintiffs $2,500 in costs and attorney fees.
We reject defendant’s contention that the circuit court had no authority to award costs under the circumstances. MCR 2.603(D)(4) and 2.625(D) require that the setting aside of a default judgment be conditioned upon the defaulting party’s paying the other party’s costs incurred in procuring and relying upon the default. Typically, where this Court sets aside a default or default judgment, it will specifically direct the trial court upon remand to assess costs upon the defaulting party. See, e.g., Komejan v Suburban Softball, Inc, 179 Mich App 41, 53; 445 NW2d 186 (1989); Reed v Walsh, 170 Mich App 61, 67; 427 NW2d 588 (1988). In this case, because this Court did not award costs but remanded for further proceedings, it was reasonable for the circuit court to assume that, consistent with the requirements of the court rules, those further proceedings were to include an award of costs upon plaintiffs’ motion.
We agree with defendant’s contention, however, that the circuit court had no authority to award attorney fees in the absence of a statute or court rule permitting such an award. MCL 600.2405; MSA 27A.2405 provides that attorney fees may be awarded as taxable costs if authorized by statute or court rule. Similarly, this Court has held that attorney fees are generally not allowed as an element of taxable costs, except where specifically authorized by statute or court rule. Matras v Amoco Oil Co, 424 Mich 675, 695; 385 NW2d 586 (1986); DeWald v Isola (After Remand), 188 Mich App 697, 699; 470 NW2d 505 (1991). Because attorney fees are not specifically authorized as an element of taxable costs in connection with the setting aside of a default judgment, the circuit court was not authorized to award attorney fees as an item of costs in this case.
Defendant also contends that the circuit court had no authority to award costs because plaintiffs failed to move for costs within twenty-eight days from the date this Court set aside the default judgment, as defendant contends is required by MCR 2.625(F)(2). Plaintiffs, however, moved for costs within twenty-eight days of the date the record was returned to the circuit court. Because plaintiffs could not have been expected to move for costs before the return of the action to the circuit court, the motion for costs was timely filed.
Award of costs and attorney fees vacated and case remanded for redetermination of costs in a manner consistent with this opinion. We do not retain jurisdiction.
We distinguish our recent decision in McKelvie v Mount Clemens, 193 Mich App 81; 483 NW2d 442 (1992), in which we construed MCR 2.504 as permitting the award of attorney fees as a condition of the plaintiffs receiving a voluntary dismissal without prejudice. The purpose of such an award of attorney fees is to place the defendant in a position similar to that in which the defendant would have been had the plaintiff not first initiated the action and then sought a voluntary dismissal, usually to pursue a more favorable forum. We emphasized in McKelvie that the award of attorney fees in such a case was limited to fees for attorney work product that could not be used in a subsequent action. Unlike a plaintiff who seeks a voluntary dismissal, a defendant will be allowed to set aside a default judgment only upon showing both good cause to set aside the default and a meritorious defense pursuant to MCR 2.603(D) and MCR 2.612, and upon the defendant’s paying the plaintiff’s costs in obtaining the default. By further contrast, because of the nature of a default, a plaintiff who has obtained a default judgment has generally incurred very little by way of attorney fees beyond those that the plaintiff would have incurred had the defendant defended originally. Thus, although the language of MCR 2.603(D)(4) is similar to that of MCR 2.504, the different purposes behind the provisions persuade us that the better policy is that expressed by the general rule that attorney fees are not recoverable unless expressly authorized by statute or court rule. | [
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Neff, J.
In this suit for recovery of broker’s commissions, plaintiff attempts to appeal as of right from the circuit court’s amended order granting partial summary disposition to defendants. We dismiss plaintiff’s appeal for lack of jurisdiction.
i
The order granted summary disposition to defendants Elaine Washburn and Deborah Washburn with respect to the claim of breach of contract in count i of plaintiff’s second amended complaint. Summary disposition was granted on the ground that those defendants were not signatories of the listing agreement that called for the broker’s commission.
The order also granted summary disposition to all defendants with respect to the third-party beneficiary claim in count n of that complaint on the ground that the purchase agreement involved in this case did not contain a third-party promise to plaintiff. The only claim left after the order of summary disposition was that of breach of contract against the estate of Michael Washburn under count i of the complaint. Among the defen dants, Michael Washburn was the only one who signed the listing agreements.
ii
This appeal has been before this Court once before. It was dismissed on December 18, 1990, on the ground that this Court lacked jurisdiction because the original order granting partial summary disposition was not a final order appealable as of right. (Docket No. 134629). Unlike the amended order from which the present appeal is taken, the original order did not contain the certification that there was no just reason for delaying appeal, as required by MCR 2.604(A). The original order was amended pursuant to plaintiff’s motion after the appeal was initially dismissed.
The only change since this Court’s initial dismissal is the addition of the following language to the order:
It is further ordered and adjudged that this Order Granting Partial Summary Disposition shall be final and that there is no just cause in delaying an appeal of this matter.
We do not believe that merely adding the certifying language to the order transforms it into one that is appealable as of right.
According to MCR 7.203(A)(1), this Court’s jurisdiction of an appeal as of right from a circuit court is limited to final judgments or final orders. Helms v Helms, 185 Mich App 680, 685; 462 NW2d 812 (1990).
A final order is an order which, by itself or in conjunction with previous orders, disposes of all of the claims of all of the parties or is an order which, although otherwise not final, disposes of at least one claim of one party and is certified as a final order under MCR 2.604(A). [Dean v Tucker, 182 Mich App 27, 30; 451 NW2d 571 (1990).]
MCR 2.604(A) provides as follows:
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct entry of a final judgment on one or more but fewer than all the claims or parties, but only on an express determination that there is no just reason for delay.
Commentators have explained the effect of the certification as follows:
This much of the rule is perfectly clear — that is, that any disposition of a part of the case without the required certificate is not final and therefore not appealable of right. The other aspect of the rule’s operation is not quite so clear. That is, it does not necessarily follow that the matter may be appealed of right whenever the trial court makes the required certificate in connection with the disposition of a part of the case. MCR 2.603(A) [sic, 2.604(A)] operates only "when more than one claim for relief is presented in an action.” The certificate of the trial judge does not preclude the appellate court as to whether there were actually multiple claims presented. The appellate court is free to decide for itself whether there were actually multiple claims or only mere variants of a single claim. [3 Martin, Dean & Webster, Michigan Court Rules Practice, Rule 2.604, authors’ comments, p 416.]
The commentators went on to explain:
(X]f a claimant presents merely alternative legal theories, such that he will be permitted to recover on at most one of them, his possible recoveries are mutually exclusive, and he has presented only a single claim for relief. A preliminary disposition of one of his alternative theories cannot be made the subject of a final judgment and resulting appeal under MCR 2.604(A). [Id. at 417.]
Thus, certification by the lower court does not end the inquiry into whether an order is final. The question whether the lower court had merely disposed of one or more legal theories of a plaintiffs single claim for relief must also be resolved before an order can be considered final so that it can be appealed as of right.
In Derbeck v Ward, 178 Mich App 38, 41; 443 NW2d 812 (1989), a panel of this Court cited with approval the quoted passages from Martin, Dean & Webster. On the basis of that language, the panel concluded that the order in that case, which granted summary disposition of some, but not all, of the plaintiffs several theories of negligence, was not a final order. Id. at 42. Nonetheless, the panel went on to consider the merits of the appeal as on leave granted. Id. The same procedure was followed in Helms, supra.
We disagree with the procedure in those cases because it leads to piecemeal appeals and an unnecessary waste of judicial resources. Further, under MCR 7.203(A)(1), this Court does not have jurisdiction of nonfinal circuit court orders appealed as of right.
In the present case, the first part of the inquiry is satisfied by the certifying language in the amended order granting partial summary disposition. The second aspect of the inquiry, however, is not satisfied. Plaintiff seeks to recover its broker’s commissions under alternative theories: a claim of breach of contract and a third-party beneficiary claim. It can recover those commissions on, at most, one of those theories. Thus, plaintiff has presented only a single claim for relief. Therefore, this Court does not have jurisdiction to consider this appeal brought as of right.
Appeal dismissed. | [
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Per Curiam.
Plaintiff appeals from an order of the circuit court granting summary disposition in favor of defendant on plaintiff’s wrongful discharge claim. Summary disposition was granted pursuant to MCR 2.116(0(10) (no genuine issue of material fact). We affirm.
Plaintiff was employed by defendant as the director of housekeeping of the Novi Hilton. Plaintiff began his employment on February 19, 1988, and was discharged approximately eight months later, apparently because of poor work performance. Plaintiff contends that the terms of his employment with defendant provided for termination only for "just cause” and that, pursuant to the provisions of an employee policy manual issued by defendant, the appropriate level of discipline would have been a verbal or written warning concerning plaintiff’s deficiencies in performance rather than termination. Defendant maintains that plaintiff was an at-will employee. We agree with the trial court that there is no genuine issue of material fact that plaintiff was other than an at-will employee.
This case may be resolved by considering the Supreme Court’s recent decision in Rowe v Montgomery Ward & Co, Inc, 437 Mich 627; 473 NW2d 268 (1991). As the Court explained in Rowe, contracts for permanent employment are for an indefinite period of time and are presumptively construed to provide for employment at will. Id. at 636. The employee may overcome this presumption by proof of an express contract for a definite term or a provision forbidding discharge in the absence of just cause, or by proof that there was a promise implied in fact of employment security, such as employment for a particular period of time or to terminate only for just cause. Id. Plaintiffs reliance in this case on the disciplinary scheme established in the employment manual does not establish a promise of termination for just cause only. Nothing in the employment manual states that an employee would not be terminated except for one of the reasons listed in the disciplinary section. This is similar to the facts in Rowe, where the employment manual listed prohibited conduct that would result in dismissal but did not suggest that the enumerated conduct was the only basis for dismissal. The Court concluded that this was not evidence that would form a reasonable basis for finding a promise of job security. Id. at 645.
Furthermore, the employment manual at issue explicitly stated that it was not an employment contract, but only a guideline of the policies and benefits provided by defendant. We do not find it to be of any moment that the manual may not have explicitly stated that employment was at-will and that termination was not limited to those instances where just cause is shown. As stated above, the presumption is that employment is at-will, and the proper inquiry is whether the employer, through its employment manual or otherwise, made representations or promises that termination would be only for just cause. No such representations were contained in this employment manual, and the manual did, in fact, explicitly state that it was not a contract but merely a guideline.
The fact that defendant had established a disciplinary system for its employees and, apparently, obligated plaintiff to abide by that disciplinary system in dealing with his subordinates does not establish unequivocally plaintiffs position that he was a just-cause employee rather than an at-will employee. Certainly, it is not unreasonable to expect that an employer, particularly one such as defendant that employs a large number of individuals, would want a systematic method of dealing with its employees and would provide a consistent set of guidelines under which its managers would deal with subordinates. This does not mean that by doing so an employer establishes just-cause employment rather than at-will employment. The concept of at-will employment means not only that the employer, if it so chooses, may provide a disciplinary system and may terminate only for cause, but also that the employer may terminate for any other reason if the employer believes that that is in the best interests of the employer. Indeed, in this respect, we once again return to Rowe and note that even in Rowe the employer had created a disciplinary system for dealing with its employees, but the Supreme Court nevertheless concluded that the employee could not harbor any legitimate expectation of a policy of discharge for cause by the employer. Id. at 651.
With respect to any oral representations made during the preemployment interview, we are also unpersuaded that any such representations form the basis for finding a just-cause contract in this case. Oral statements of job security must be clear and unequivocal to overcome the presumption of employment at will. Id. at 644. The oral statements related by plaintiff in his brief were comments made during preemployment interviews by the general manager to the effect that he saw plaintiff as a person who would go places with the Hilton Corporation and that he felt the relationship would be a good one in which there would be an opportunity to grow and maintain some type of long-term relationship. We fail to see how these comments could induce a belief by plaintiff that termination would be for just cause only. Rather, they merely reflect the general manager’s belief that plaintiff would be an appropriate person to hire and that he was optimistic about plaintiff’s future performance and ability to advance with the company. Certainly, one would not expect the general manager to hire as his director of housekeeping someone whom he expected to have poor job performance and to be terminated within a year. Id. at 640 (an orally grounded contractual obligation for permanent employment must be based on more than an expression of a hope for a long-term relationship).
For the above reasons, we conclude that plaintiff has failed to bring forth any facts to support his claim that he was a just-cause employee and, therefore, the trial court properly granted summary disposition in favor of defendant. In light of this resolution, we need not consider plaintiff’s other argument, whether there was a question of material fact concerning whether defendant had just cause to discharge plaintiff.
Affirmed. Defendant may tax costs. | [
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Levin, J.
The defendant, Paul Glass, and his brother, Joe Glass, were charged with armed robbery. MCLA 750.529; MSA 28.797. After a six-day trial, which began on July 17, 1969, the jury was unable to agree on a verdict and a new trial was ordered.
Between the first and second trials, on August 1, 1969, the Glasses, who were indigent and represented by assigned counsel, filed a motion to obtain at state expense a transcript of the testimony of the first trial. The lawyers for the Glasses referred the trial judge to judicial precedents which they claimed supported their motion, but did not file a written brief. The motion was denied on November 17, 1969 because a written brief was not filed.
The second trial began on December 8,1969. Paul Glass was convicted, of attempted armed robbery. This is his appeal. The jury was unable to agree on a verdict concerning Joe Glass; subsequently he pled guilty to an added count of attempted resisting and obstructing an officer in the discharge of his duty
It does not appear from the record whether the judge directed the Glasses’ lawyers to prepare a written brief in support of their motion seeking á transcript of the first trial. There being nothing in the record to show that defense counsel was directed to file a written brief, we could not properly sustain the denial of a transcript of the first trial on that ground.
In Britt v North Carolina, 404 US 226; 92 S Ct 431; 30 L Ed 2d 400 (1971), the United States Supreme Court ruled that Griffin v Illinois, 351 US 12; 76 S Ct 585; 100 L Ed 891 (1956), and its progeny, oblige the State to provide an indigent defendant with a transcript of prior proceedings when a transcript is needed for an effective defense at a subsequent trial but that “in the narrow circum stances” of the case presented the refusal of a transcript was not violative of that right. The Supreme Court explained that although a defendant who demands a free transcript does not “bear the burden of proving inadequate such alternatives as may be suggested by the state or conjured up by a court in hindsight”, in the case there presented “petitioner has conceded that he had available an informal alternative which appears' to be substantially equivalent to a transcript”.
In Britt both trials took place in a small town before the same judge with the same defense counsel and court reporter who, as was conceded, was well known to defense counsel and other local lawyers and would have read back his notes to defense counsel before the second trial had he been asked to do so. The two trials were only a month apart.
The United States Supreme Court declared in Britt (404 US at 228; 92 S Ct at 434 ; 30 L Ed 2d at 404):
“We agree with the dissenters that there would be serious doubts about the decision below if it rested on petitioner’s failure to specify how the transcript might have been useful to him. Our cases have consistently recognized the value to a defendant of a transcript of prior proceedings, without requiring a showing of need tailored to the facts of the particular case. As Mr. Justice Douglas makes clear, even in the absence of specific allegations it can ordinarily be assumed that a transcript of a prior mistrial would be valuable to the defendant in at least two ways: as a discovery device in preparation for trial, and as a tool at the trial itself for the impeachment of prosecution witnesses.
“But the court below did not use the language of ‘particularized need.’ It rested the decision instead on the second factor in the determination of need, that is, the availability of adequate alternatives to a transcript.” (Emphasis supplied.)
In Britt the Supreme Court also expressed its doubt that “it would suffice to provide the defendant with limited access to the court reporter during the course of the second trial. That approach was aptly rejected as ‘too little and too late’ in United States, ex rel Wilson v McMann, 408 F2d 896, 897 (CA 2, 1969)”. (Emphasis supplied.) 404 US at 229; 92 S Ct at 434; 30 L Ed 2d at 404.
In this case the Glasses were represented by the same lawyers at both trials, and the same judge presided at both trials. There the factual similarity to Britt ends. In this case the trials did, not .take place in a small town but in Detroit Recorder’s Court, one of the busiest criminal courts in the nation. Nearly five months intervened between the first and second trials. There is no concession on this record that the court reporter at the first trial would, as an accommodation, have been willing to read his notes of the six-day first trial to the Glasses’ lawyers, nor do we think that a busy court reporter could be expected to be that generous with his time. The court reporter at the second trial was a different reporter than the reporter who made a record of the proceedings at the first trial. It is obvious that at the second trial defense counsel would, at best, have had limited access to the reporter who took the notes at the first trial, to say nothing of the fact that access at that stage would have been “too little and too late”.
As tbe United States Supreme Court observed in Britt, it can ordinarily be assumed that a transcript of an earlier trial would be valuable to a defendant for discovery and impeachment purposes. The record of the second trial in this case shows that a transcript of an earlier trial may also be needed to rehabilitate a witness who is challenged at a subsequent trial on the strength of the interrogator’s asserted recollection of the testimony given at the earlier trial.
Reversed and remanded for a new trial. Before a new trial commences, Paul Glass shall be furnished with a complete transcript of the first trial.
All concurred.
MCLA 750.92, 750.529; MSA 28.287, 28.797.
MCLA 750.92, 750.479; MSA 28.287, 28.747.
See, also, Roberts v LaVallee, 389 US 40, 42; 88 S Ct 194; 19 L Ed 2d 41 (1967), where the United States Supreme Court ruled that an indigent defendant was deprived of the equal protection of the laws when the trial court refused to supply him, at state expense, with a transcript of a preliminary hearing.
In a number of jurisdictions indigent defendants have been held entitled to receive, at state expense, transcripts of an earlier trial to assist them in their preparation and defense at a succeeding trial. People v Ballott, 20 NY2d 600, 604; 286 NYS2d 1, 4; 233 NE2d 103, 105 (1967); State v Eighth Judicial District Court, 80 Nev 478, 480-481; 396 P2d 680, 681-682 (1964); People v Delafosse, 36 Ill 2d 327; 223 NE2d 125 (1967).
See, also, People v Cross, 386 Mich 237 (1971), affirming 30 Mich App 326 (1971).
See, generally, Note: Might to Aid m Addition to Counsel for . Indigent Criminal Defendants, 47 Minn L Rev 1054 (1963).
See United States ex rel Wilson v McMann, 408 F2d 896 (CA 2, 1969). | [
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McGregor, P. J.
This is a declaratory judgment case. Review of a declaratory judgment proceeding is de novo. McComb v McGomb, 9 Mich App 70, 74 (1967).
Plaintiff was employed by the defendant as an assistant professor of Spanish. His first two academic years were 1966-67 and 1967-68, during which time he had the usual probationary statusi. In March 1968, plaintiff was notified by the defendant that he had been granted a third probationary contract. While plaintiff indicated that he did not like this third year as a probationary teacher, nevertheless, he accepted the defendant’s offer in April 1968. In March 1969, plaintiff was notified that he would not be offered a teaching contract for the academic year 1969-70 because of his unsatisfactory attendance record. On July 23, 1969, plaintiff brought suit for declaratory judgment, pursuant to GCR 1963, 521, seeking a judgment declaring that he was entitled to a permanent status contract as a full- time teacher for the defendant for the academic years 1968-69 and 1969-70. The relief requested by plaintiff is similar to specific performance of a contract, which is one of the classic cases for equity jurisdiction. See 5A, Corbin on Contracts, § 1137, p 97. The defendant admitted that the plaintiff had a probationary status contract, but averred that the employment was terminated by the defendant according’ to the procedures set forth in the agreement between the defendant and the teachers’ representative, the Macomb County Community College Faculty Organization.
A trial was held before the court and an advisory jury. Four special questions were submitted to the advisory jury; their findings are as follows:
“1. Do you find that the plaintiff, Rafael Curbelo, during the school year 1968-1969 failed to report one or more absences from scheduled classes.
“The Jury answered yes.
“2. Do you find that the plaintiff, Rafael Curbelo, during his tenure as a teacher for the defendant reported one or more absences only after being notified that he failed to do so.
“The Jury answered yes.
“3. If you find that the plaintiff, Rafael Curbelo, during his tenure as a school teacher for the defendant, reported one or more absences only after being notified that he failed to do so, do you find that this failure to so promptly report his absences was an attempt on his part to conserve his sick days.
“The Jury answered yes.
“4. Did the defendant college have reasonable and adequate cause for not rehiring the plaintiff.
“The Jury answered no.”
After receiving the verdict and dismissing the jury, the trial court made the following comment:
“The jury has made their advisory finding. _ I suppose that the court now has to make its official finding. Frankly, I am at a loss how they can 'answer those first three questions yes and come up with a final answer no.”
In its written opinion, the trial court stated:
“The court finds that the verdict of the jury was proper based upon the testimony and exhibits.
“In conclusion the court finds :
“1. That the plaintiff had probationary status during the year 1968-1969;
“2. That the reasons for not rehiring the plaintiff were not reasonable and adequate.”
In its opinion, the trial court specifically adopted the findings of fact of the advisory jury. Findings of fact by the trial judge in a nonjury action will not be reversed unless they are clearly erroneous. GCR 1963, 517. McDaniels v Schroeder, 9 Mich App 444 (1968); Jinkner v Town & Country Lanes Inc, 10 Mich App 596 (1968). The findings of fact on questions one through three are supported by the record and are not clearly erroneous.
However, question four is not a finding of fact, but an interpretation of the provisions of the contract between defendant and plaintiff’s representative, the Macomb County Community College Faculty Organization. It is the duty of the court, not the jury, to construe written contracts and to define what is and what is not within their terms. Cutler v Spens, 191 Mich 603 (1916). See also Pan American Petroleum Corp v Cities Service Gas Co, 191 Kan 511; 382 P 2d 645 (1963).
The contract provides that:
“The service of a probationary teacher shall not be terminated nor shall he be placed upon a third year probation except for reasonable and adequate cause, or for failure to meet the standards established by the departmental or area evaluative procedures, or for a significant falsification of employ- meat credentials. By ‘reasonable and adequate cause’ is meant wilful violation of contract or refusal to perform contractual duties.”
The trial court sought to reconcile his verdict with the findings of fact by suggesting that the procedure for reporting partial absences was confusing. The specific finding by the advisory jury and adopted by the trial court was that the plaintiff failed to report his absences, not because the reporting procedure was confusing, but because he wanted to conserve his sick days. This finding is fully supported by the record. The trial court’s verdict that the reasons for not rehiring the plaintiff were not reasonable and adequate is inconsistent with his findings of fact. The terms of the contract are clear that “reasonable and adequate cause” means a “wilful violation of the contract or refusal to perform contractual duties”. The contract provides that when a teacher is unable to meet his classes due to illness, he shall report his absence (s) to the school. The failure to report absences in order to conserve sick days is within the meaning of a wilful contract violation.
Reversed. Remanded to the trial court for the entry of an order declaring that defendant had reasonable cause to terminate plaintiff’s employment.
All concurred. | [
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Per Curiam.
This is an appeal from an order denying defendant’s motion for accelerated judgment. Application for leave to appeal was filed on December 31, 1970, which was granted on February 26, 1971.
During the period from July 14, 1967, through August 16, 1968, plaintiff, a Michigan corporation, manufactured and shipped to defendant, a Louisiana corporation, certain investment castings for desalinization equipment owned by the defendant. Defendant placed about 131 orders with plaintiff during the period, the orders totalling almost $57,000.
The castings were fabricated according to defendant’s specifications and were stored at plaintiff’s place of business until they were shipped at defendant’s instructions, f.o.b. Muskegon. The business was carried on entirely by mail, telephone, and shipping. No personal contact or conferences were involved. At no time did defendant’s officers or agents enter this state.
The parties terminated their business relationship in August 1968. Plaintiff, pursuant to defendant’s instructions, then sent the tooling used for the manufacture of the parts in question to the defendant in Louisiana. Plaintiff then demanded that defendant pay $7,903.88, the balance that plaintiff contends defendant still owes. Defendant declined to make the payment, and plaintiff brought this suit.
Defendant contends that the circuit court lacks jurisdiction over the defendant corporation. Defendant maintains that it did not have the requisite “minimum contacts” within this state to subject it to the jurisdiction of the Michigan courts.
The trial court held that the court obtained jurisdiction over defendant by virtue of MCLA 600.715; MSA 27A.715, which provides:
“Sec. 715. The existence of any of the following relationships between a corporation or its agent and the state shall constitute a sufficient basis of jurisdiction to enable the courts of record of this state to exercise limited personal jurisdiction over such corporation and to enable such courts to render personal judgments against such corporation arising out of the act or acts which create any of the following relationships:
“(1) The transaction of any business within the state.
“(2) The doing or causing any act to be done, or consequences to occur, in the state resulting in an action for tort.
“(3) The ownership, use, or possession of any real or tangible personal property situated within the state.
“(4) Contracting to insure any person, property, or risk located within the state at the time of contracting.
“(5) Entering into a contract for services to be performed or for materials to be furnished in the state by the defendant.”
It is plaintiff’s position that jurisdiction is established under sub-sections (1), (3), and (5) of the above statute.
Under the contract defendant maintained a proprietary interest in all of the tools used in the manufacturing process. Defendant concedes that it was the owner of the tools. The tools were, in fact, sent to defendant at one point due to a change in specifications. Defendant then returned the tools after they had been altered.
Since defendant was the owner of all of the tools that were used to manufacture the parts which were sold to defendant, it is our opinion that jurisdiction is established under subsection (3) of the statute. It was defendant’s tools that made it possible for plaintiff to fill defendant’s orders and carry out its part of the contract. Without the tools there could have been no production and, therefore, no contract. We therefore have the cause of action arising directly out of the ownership of the tools by defendant which is sufficient, in our opinion, to establish jurisdiction under BJA 715(3).
Since we have found that jurisdiction was established under MCLA 600.715(3); MSA 27A.715(3), we do not find it necessary to discuss whether or not jurisdiction may also have been established under any other section of the statute.
Affirmed. | [
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Y. J. Brennan, J.
Defendant and a codefendant were tried and convicted by a jury of an attempted larceny from a motor vehicle. The circumstances leading up to defendant’s arrest are as follows: an office worker observed two men attempting to break into the trunk of a company-owned car which was parked outside the worker’s window. He and another worker then left the office and began to chase the two men who had been attempting to break into the automobile. The chase led past a Grand Rapids policeman patrolling in a police car. The office workers informed the policeman of the incident, and he promptly broadcast a description of the two individuals he had seen fleeing. This officer apprehended one of the individuals shortly thereafter, and a nearby police officer, who had heard the radio description, apprehended another individual. Both men were then returned to the scene of the attempted breaking where they were identified on the basis of the similarity of their apparel.
At his trial, the defendant claimed he was at the scene of the incident, and was chased by the office workers, but maintained that two similarly-dressed men actually committed the crime. Prom his conviction, defendant appeals as of right, and makes three allegations of error.
Defendant’s first allegation of error is that the following cross-examination by the prosecutor constituted an improper inquiry into the defendant’s prior criminal record:
“Q. Have you ever been arrested and convicted before?
“A. I have never been convicted, I have been airested.
“Q. Ever been convicted?
“A. I did eight months before then I was sentenced to 30 days more.
“Q. What was that for?
“A. Sir, assault with a shotgun.
“Q. On a police officer, right?
“A. Yes.
“Q. Ever been arrested and convicted of any other crimes?
“A. Curfew, I was picked up for curfew and I had one charge dropped on me.
“Q. Is that it?
“A. That is all I can remember.
“Q. Do you remember July 19, 1967, being arrested for attempted larceny and being convicted for that crime?
“A. I never been convicted on a larceny.
“Q. Do you recall being sentenced $15 and costs or 30 days?
“A. Yes, that was for the judge said because the woman we disturbed or something she hollered or something.
“Q. The charge was attempted larceny, wasn’t it?
“A. No, he broke it down to disturbing the peace.
“Q. You recall being arrested October 18, 1969 for larceny under $100 in tbe City of Wyoming, being convicted for that ?
“A. Yes.” (Emphasis Added.)
Since neither party favored the court with an authoritative explanation of just what transpired between the defendant and the minions of the law on July 19, 1967, we have caused the relevant records to be examined. The fruit of this investigation substantiates defendant’s testimony. He was charged and convicted) of being a “disorderly person” under a City of Grand Rapids ordinance. The record used by the prosecutor for his cross-examination of the defendant was erroneous regarding the events of July 19, 1967. Therefore that portion of the cross-examination which suggested that defendant had been charged with an attempted larceny constitutes error.
However, we do not find such error reversible, for the following two reasons: (1) defense counsel made no objection at the time of the cross-examination, and this Court has so frequently stated that it will only consider alleged errors which have not been preserved by objection on unusual occasions that no citation is necessary, and (2), we do not feel the error was prejudicial in that defendant admitted to being convicted of larceny on another occasion.
Defendant’s second allegation of error is that the following examination of the defendant by the court was improper:
“Q. [The Court]: Why did you run away if you didn’t do anything, why did you run?
“A. [The defendant]: I guess because he was hollering at us.
“Q. ’Urn?
“A. I guess because he was hollering at us.
“Q. You guess because someone yelled at you?
“A. Yes.
“Q. Is that the reason you ran?
“A. We would have been picked up anyway if we stayed.
“Q. I didn’t ask you that, is that the reason you ran?
“A. Yes, that is the reason we ran.”
We find this allegation to be without substance. A similar line of questioning by the trial court was ruled to be within the judge’s discretion in People v Otis Dumas, 25 Mich App 535 (1970).
Defendant’s final allegation of error is that his return to the scene of the incident and his identification by the witnesses to the incident violated the rules of United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967), in that defendant did not have counsel available at the time. This Court has held that the requirement of counsel at an identification does not apply where the identification is an “in-the-field” type and is reasonable police practice. People v Hutton, 21 Mich App 312 (1970). We hold that in this case the return of the defendants to the scene was a reasonable police practice and accordingly we find no error.
Affirmed.
All concurred.
MCLA 750.92; MSA 28.287.
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Bronson, J.
Plaintiff filed suit in Ingham County Circuit Court, October 11, 1966, against defendants Babcock, as joint tenants, seeking to enjoin their intended landfill into Lake St. Clair. After a six-day nonjury trial, an opinion was filed February 26, 1970, and judgment was entered on May 8, 1970, granting plaintiff the injunction it sought. Defendants Babcock appeal of right.
At trial, this case was consolidated with the second case, People, ex rel. Director of Conservation, v Reghi, in which the state also was granted the injunction it sought. Defendants Reghi do not appeal the determination against them.
In May, 1966, this Court decided that an appeal in a similar case between the same two parties was moot because of a then-recent amendment to the Great Lakes Submerged Lands Act, MCLA §§ 322-.701 et seq. (Stat Ann 1967 Rev §§ 13.700[1] et seq.). See People, ex rel. Director of Conservation, v. Babcock (1966), 3 Mich App 403. In deciding the case was moot, this Court affirmed a lower court order dissolving a restraining order which had prevented defendants from filling in the land in question since 1955. That decision was based on the Supreme Court’s ruling in Klais v. Danowski (1964), 373 Mich 262.
Subsequent to this Court’s opinion in 1966, defendants Babcock, through their attorney, informed plaintiff that they considered the amendments to the Great Lakes Submerged Lands Act to be unconstitutional and that they would proceed to fill a certain section of Lake St. Clair allegedly owned by them. Plaintiff then filed the instant suit and was granted a temporary restraining order on October 11, 1966. On November 3, 1966, defendants moved to consolidate the instant case with the Beghi case. The grounds for consolidation were that plaintiff’s claims in both cases were “substantially the same” and the. defendants’ answers in both cases “raised the same issues of law”. Plaintiff first objected to the said motion, but later withdrew its objections and the cases were consolidated.
On December 6, 1966, the City of St. Clair Shores moved for leave to intervene and filed a cross-complaint in the instant action. It alleged that the proposed landfill would (a) change the city’s easterly boundary without its consent, and (b) close off a portion of the bay which was the outlet for the Milk River drain, a combined sewer utilized by the city, thus' endangering the health, safety, and welfare of city residents. The motion to intervene was granted. The Milk River Drainage District intervened only in the Reghi case.
The consolidated cases involved areas of submerged lands contiguous to one another. The instant-area is adjacent to Lot 52 of Babcock’s Lakeside Subdivision at the southerly boundary of Private Claim No. 599 granted in January, 1810. The area involved in the Beghi case is adjacent to Lot 53 at Assessor’s Plat No. 7 along the northerly line of Private Claim No. 624 also granted in January, 1810. At trial, both defendants Babcock and defendants Reghi claimed that the adjacent areas submerged under Lake St. Clair were “upland” at the time of the patent grants and now may be reclaimed by landfills. Defendants further claim that any attempt to control said reclamation attempts would be unconstitutional without a provision for compensation.
The trial judge entered a single judgment against both defendants Babcock and defendants Reghi. The judgment prohibited the defendants from filling in the disputed land as said fills would interfere with and retard the Milk River’s flow resulting in a hazard to the public welfare. The trial judge also found that the land sought to be filled was not within Private Claim No. 599 nor within Private Claim No. 624 and that the defendants could not trace their titles in this land to the original patent grants of 1810.
The defendants’ first allegation is that the trial court erred in entering a single judgment in this consolidated case. The thrust of their argument is that as a result of this action, the court erroneously entered judgment, in the instant case for the Milk River Drainage District, which was not a party in the Babcock suit.
Plaintiff contends that after consolidation the two cases were treated as one and that it can perceive no reason for entering* separate judgments. Further, such action would accomplish nothing of any legal substance.
GCR 1963, 505.1 allows a trial judge to consolidate cases “when actions involving a substantial and controlling common question of law or fact are pending before the court”. This frequently occurs in two situations. First, where several actions are pending between the same parties stating claims which could have been brought in separate counts of a single claim. Second, “where several actions are * * * tried together but each retains its separate character and requires the entry of a separate judgment”. 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), Rule 505, p 364.
The instant case represents the second situation. This case was consolidated with Beghi for the court’s convenience in trying the common questions involved in both suits. The comments to the rules make it clear that such a consolidation does not merge the two cases. When a decision is rendered, it is to he rendered separately in each case. The Federal courts have reached the same conclusion as to the Federal rule of consolidation. National Nut Company of California v. Susu Nut Co. (ND Ill, 1945), 61 F Supp 86, 87.
Plaintiffs argument that no purpose would he served by entering separate judgments ignores the consequences of single judgments; judgments for parties against others not involved in the particular suit. Indeed, that is what happened in this case.
While consolidation is allowed for the obvious administrative savings it brings, it should not he allowed where confusion and prejudice may result. 2B Barron & Holtzoff, Federal Practice & Procedure, Rule 42, § 941, p 177. When cases are consolidated, they keep their separate identities and parties in one action do not become parties to the other, 2 Honigman & Hawkins, supra, at 364, and pleadings in one are not pleadings in the other. MacAlister v. Cuterma (CA 2, 1958), 263 F2d 65; National Nut Compomy of California v. Susu Nut Co., supra. Where the proofs and arguments are such that it is easy for a judge to lose sight of who the parties in each particular suit are, it is had practice to grant a consolidation motion. It is obviously prejudicial for a party to find himself saddled with a judgment in favor of another who did not participate in the suit against him. We, therefore, find that the trial judge erred in entering a single judgment in this case and in entering judgment for the Milk River Drainage District against defendants Babcock.
On entry of new judgments, we think it proper for the trial judge to enter judgment for the City of St. Clair Shores against defendants Babcock. St. Clair Shores is partly embraced in the Milk River Drainage District. In its complaint, the city contended that the proposed landfill would interfere with the Milk River Drain.
The only witness called with respect to the drain was called by the drainage district. Dr. Hugo Mendelbaum, on cross-examination by the attorney representing the City of St. Clair Shores, testified that the landfill could interfere with the natural flushing effect caused by the renewal of water passing the channel beside the Babcocks’ property, thus rendering pollution problems in the area more probable. This appears to establish legitimate proofs of irreparable harm by a party to the Babcock case. The fact that Dr. Mendelbaum was called by a party to the Reghi case is not important. What is, is that defendants Babcock were put on notice of these contentions and that a party to the suit elicited such proofs. This is entirely consistent with the purpose of judicial economy and convenience in consolidated suits. While separate suits retain their identity, proofs in one stand as proofs in the other as to common questions of fact. Johnson v. Manhattan Railway Co. (1933), 289 US 479 (53 S Ct 721, 77 L Ed 1331); National Nut Co. of California v. Susu Nut Co., supra; Armstrong v. Commercial Carriers, Inc. (1954); 341 Mich 45.
Defendants nevertheless contend that Dr. Mendelbaum’s testimony was insufficient to support the trial court’s finding that the proposed fill would be a detriment to the health of the communities served by the drain. This argument is posited on the witness’s inability to state that the fill would definitely be a health hazard. The witness did state that he could not see how it could he beneficial.
The statement on which defendants rely was the witness’s expert opinion as to the ultimate fact to be decided by the trier of fact. Whether the proposed fill would be detrimental was a fact for the trial judge to ultimately determine. See Dudek v. Popp (1964), 373 Mich 300. A review of Dr. Mendelbaum’s testimony shows sufficient facts from which the trier of fact could determine that the fill would be hazardous. Basically, his testimony revealed that an existing pier in the area was a detriment to the affected communities; that the area’s problem stemmed from what appeared to be polluted water coming out of the drain into the bay; that when this water entered the bay its velocity slowed, which could cause sedimentation; and that restricting the flow of water would minimize sedimentation. Finally, in response to a hypothetical question on the effect of the proposed fill, Dr. Mendelbaum testified that it was very possible for this to increase sedimentation and thus increase pollution in the area.
This brings this Court to the crux of this case. The trial judge established the boundaries of Private Claim No. 599 so that Lot 52 of the Babcock Lakeside Subdivision lies outside the claim. Defendants contend that the Supreme Court’s decision in Klais v. Danowski, supra, barred him from doing so. Defendants further argue that the parties stipulated the boundaries of Private Claim No. 599 to be those set in Klais and that this stipulation should have bound plaintiff, citing Feniger v. American Railway Express Co. (1924), 226 Mich 106.
What did Klais decide? The question in Klais was whether two lots in Private Claim No. 623 were “part of the State-owned, unpatented, submerged
lands of the Great Lakes and, as such, subject to PA 1955, No 247, as amended by PA 1958, No 94 (CLS 1961, § 322.701 et seq. [Stat Ann 1958 Bev and Stat Ann 1963 Cum Supp § 13.700(1) et seq.])”. Klais, supra, at 265. Private Claim No. 599 lies adjacent to and south of 623. The state intervened in that case to protect its interest in the submerged lands. The Supreme Court held that the lots in question were within Private Claim No. 623 and that such lands could be reclaimed by successors in title to the original patentees. To arrive at this holding, the Court had to fix 623’s boundaries. Since no posts or markers could be found from the original 1810 survey by Aaron Greeley, the Court found the center line of Harper Avenue to be the westerly boundary of 623 and used this to set the other boundaries.
Private Claim No. 599 was involved in Klais only because of its common history and because its westerly boundary was an extension of 623’s. Defendants rely on the Klais discussion of 599 to argue that all its boundaries have been settled.
Res judicata bars further action after an original cause of action between two' parties goes to judgment. When the subsequent action is based on a new cause of action, the prior litigation is conclusive only as to issues actually litigated. This is the doctrine of collateral estoppel. Jones v. Chambers (1958), 353 Mich 674,- Jacobson v. Miller (1879), 41 Mich 90. In Klais, the questions litigated involved the boundaries of 623 and only incidentally those of
599.
Further, for the doctrine of res judicata to apply, the parties must be thé same or a privy to a party to an action in which a valid judgment was rendered. One is a privy when he has acquired an interest in the subject matter affected by the judgment, through a party to the litigation, after the judgment. Bernhard v. Bank of America National Trust & Savings Association (1942), 19 Cal 2d 807 (122 P2d 892). The Babcocks have no interest in the property in question in Klais and cannot be said to be privy to a party to that litigation.
Defendants nevertheless argue that res judicata may apply even where the parties are not identical with those of the prior litigation. Jones v. Chambers, supra. Our Supreme Court, however, has recently held that for res judicata to operate there must be mutuality of estoppel. Howell v. Vito’s Trucking & Excavating Co. (1971), 386 Mich 37. In essence, both parties must be bound by the prior judgment or neither is bound. Certainly, the Babcocks would not have been concluded had Klais gone contrary to their interests. To hold otherwise would be contrary to the Supreme Court’s warning in Howell, supra. We would be declaring the state a loser to every landowner along Lake St. Clair who could rely on Klais as an indication of where boundary lines are to claim submerged lands without ever having met in an adversary setting. This we decline to do. Klais did not determine all the boundaries of Private Claim No. 599.
Defendants next contend that, even so, the question of 599’s boundaries was settled by prior circuit court action involving the same parties in 1965. In that suit, the trial judge, relying on Klais, held that defendants had good title to the land in question. We would be inclined to agree except for the fact that this affirmed the first litigation as moot because of a then-recent amendment to Great Lakes Submerged Lands Act, MCLA § 32A701 et seq. (Stat Ann 1967 Rev § 13.700[1] et seq.). See People, ex rel. Director of Conservation, v. Babcock (1966), 3 Mich App 403.
The question of what effect an appellate court’s determination that an issue is moot has on a subsequent cause of action between the same parties has never been decided in this state. The general rule, which we adopt, is that “Where a party to a judgment cannot obtain the decision of an appellate court because the matter * * * is * * * moot, the judgment is not conclusive against him in a subsequent action on a different cause of action”. Minor v. Lapp (1963), 220 Cal App 2d 582, 584 (33 Cal Rptr 864, 865). See, also, LaSalle National Bank v. City of Chicago (1954), 3 Ill 2d 375 (121 NE2d 486); Case v. Rewerts (1957), 15 Ill App 2d 1 ( 145 NE2d 251). That being the case here, we find that the prior circuit court action is not conclusive against the state. The trial judge in the instant action was thus able to define and locate the boundaries of Private Claim No. 599. He was not bound to follow Klais or the prior circuit court judgment.
The finding which defendants object to is that:
“[T]he northerly portion of Lot 52 of Babcock’s Lakeside Subdivision lies outside the patent to Private Claim 624 and was not included within the patent to either Private Claim 599 or 624. Private Claim 599 involves no land east of the Milk River as it existed in 1810. It follows then that there can he no valid tracing of title to Lot 52 hack to the legal heirs of James Abbott, to whom Private Claim 599 was conveyed.”
To reach this finding, the trial judge tied his. description of claim 599 to that of claim 624 rather than that of claim 623. All three claims were originally laid out in an 1810 survey by Aaron Greeley. Greeley commenced each claim description “at a post standing on the border of Lake St. Clair”, and then proceeded clockwise. In Klais, the Supreme Court had little difficulty concluding that the westerly border of 599 was an extension of 623’s westerly border. See 373 Mich at 266. However, the Supreme Court could not establish the westerly border with any precision and so concluded that the center line of Harper Avenue, the accepted border for over 100 years, was the westerly border set by Greeley.
In the instant case, the trial judge had the benefit of proofs relating to Private Claim No. 624. There was testimony that the markers for the northwest and southwest comers to the rear concession to Private Claim No. 624 have been located. Since the rear concession and Private Claim No. 624 shared a common boundary, the judge was able to determine the exact location of 624; the westerly boundary being the center line of Harper Avenue. Following this description, it is found that the outlet to the Milk River is close to the position accorded it by Greeley in 1810 and that Lake St. Clair’s shoreline has been altered little with respect to 624 since 1810.
Once claim 624 is established, the position of a “post standing on the west border of the Milk River” is ascertained. This is the common marker used by Private Claims 624 and 599. This enabled the trial judge to set the boundaries of 599 with precision.
If the trial judge had laid out 599 in accordance with Klais, the common post on the west border of the Milk River would have served to pull the entire description of Private Claim 624 out into Lake St. Clair, leaving a 50.8-acre gap between the claim and its rear concession.
The trial judge was therefore correct in holding that the land in question lies outside Private Claim No. 599 and that the defendants could not trace title in this land to the original patentee. He correctly based his opinion on the legal concept that natural monuments prevail over courses and distances. By finding as he did, the trial judge has effectively foreclosed landowners north of Private Claim No. 623 and south of Private Claim No. 599 from erroneously claiming ownership of submerged lands in Lake St. Clair.
Defendants allege that they have riparian rights in the submerged contiguous lands, citing Fletcher v. The Thunder Bay River Boom Co. (1883), 51 Mich 277. This, however, is not the law with respect to submerged lands in the Great Lakes. Title to these lands is in the state subject to a public trust. State v. Venice of America Land Co. (1910), 160 Mich 680.
The trust impressed on these lands is for the protection of our navigable waters, the preservation of valuable fish and game habitat, and assurance of the public’s right to fish and boat in the subject area. See Collins v. Gerhardt (1926), 237 Mich 38.
The importance of this trust is recognized by the People of Michigan in our Constitution. Article 4, § 52 of the Constitution of 1963 declares:
“The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.”
When lands are owned by the state for the public trust, it is the state’s duty to protect the trust and not surrender the rights thereto. People, ex rel. Director of Conservation, v. Broedell (1961), 365 Mich 201. It is thus the public policy of this state with respect to submerged lands in the Great Lakes that they may be disposed of only when the Department of Conservation determines that such lands are of no substantial public value for hunting, fishing, swimming, pleasure boating, or navigation and that the general public interest will not be impaired. Obrecht v. National Gypsum Co. (1960), 361 Mich 399. There has been no such finding here. The action which defendants seek to take will necessarily interfere with the public’s rights of boating and fishing on the entire surface of the lake in its natural condition. The size of the lake would be diminished. What defendants desire to do is understandable but they may not accomplish.their objectives by invading the public trust.
The importance of protecting our natural resources for the public’s enjoyment has been brought into sharp focus by the ecology movement. These are precious assets to be preserved for present and future generations. This is an appropriate opportunity to reiterate the language used by Justice Holmes and reiterated by Michigan Supreme Court Justice Eugene Black :
“ ‘This public interest is omnipresent wherever there is a State, and grows more pressing as population grows. It is fundamental, and we are of opinion that the private property of riparian proprietors cannot be supposed to have deeper roots. Whether it be said that such an interest justifies the cutting down by statute, without compensation, in the exercise of the police power, of what otherwise would be private rights of property, or that apart from statute those rights do not go to the height of what the defendant seeks to do, the result is the same. * * * The private right to appropriate is subject not only to the rights of lower owners but to the initial limitation that it may not substantially diminish one of the great foundations of public welfare and health.’
“The supreme court held further in this case that a State has constitutional power to insist that its natural advantages shall remain unimpaired, and that when that State ‘finds itself in possession of what all admit to be a great public good,’ it may as against such asserted claim of a riparian retain what it has ‘and give no one a reason for its will.’ ” Obrecht v. National Gypsum Co., supra, at 414-415, quoting from Hudson County Water Co. v. McCarter (1908), 209 US 349 (28 S Ct 529, 52 L Ed 828,14 Ann Cas 560).
Affirmed in part, reversed in part and remanded for entry of judgment in accord with this opinion.
The City of Grosse Pointe Woods and the City of Harper Woods also intervened in this cause, but their interventions are not relevant to this appeal.
Jones v. Chambers (1958), 353 Mich 674, is distinguishable. In that case, the plaintiff to the second cause of action was concluded by the judgment in the first cause of action because its rights were derivative of the first plaintiff’s. Defendants Babcock’s rights are in no way derivative of the parties in Klais v. Danowski (1964), 373 Mich 262, as they have no interest in Private Claim No. 623.
That such a situation is entirely possible, we need only point to People, ex rel. Director of Conservation, v. Reghi (1966), 3 Mich App 389, a companion ease to People, ex rel. Director of Conservation, v. Babcock (1966), 3 Mich App 403. The former case involved Private Claim No. 624. The trial judge held that Klais v. Danowski (1964), 373 Mich 262, established the borders of 624 even though that claim was never mentioned in Klais.
Ordinarily, the fact that a judgment is erroneous will not prevent res judicata from operating. Johnson v. Haley (1959), 357 Mich 411.
Babcock was decided on the principle set forth in People, ex rel. Director of Conservation, v. Reghi (1966), 3 Mich App 389.
The fact that the trial judge was able to ascertain the exact location of Private Claim No. 599 with precision based on thé location of natural monuments suggests another reason res judicata should not operate in this case. The estoppel of a judgment extends only to the facts in issue as they existed at the time judgment was rendered and does not prevent a reexamination of the same questions where facts have changed or occurred which may alter the litigants’ legal rights and relations. In re Raseman Estate (1969), 18 Mich App 91, 105. As the Court said in that case at 104:
“The doctrine of res judicata is not immutable. It reflects a policy of law which seeks to end litigation, but it is only a policy, not an absolute rule, and it need not be and has not been applied rigidly without regard to disparate factual situations.” | [
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Pee Curiam.
On February 21, 1969, three armed men robbed a service station. In December 1969, defendant was convicted of robbery armed by a jury in Saginaw County.
Station employee Ralph Howard testified that he recognized defendant as a station customer and when defendant saw him, he held his hands up to his face. He also testified that defendant was in front of the cash register at the time he was ushered into a back room. Employee Duane Bull testified that all three of the men involved had guns. $1,450.83 was the sum of the loss. The defense was alibi, and defendant’s wife appeared as his only witness and testified that he was out of town on the date of the offense, though she was not with him.
On appeal, defendant asserts that the trial court erred in several areas concerning the conduct of the trial and the charge to the jury. Of the ten issues presented, six are allegedly reversible instructional errors. The remaining four questions challenge the admission of evidence and its sufficiency to convict beyond a reasonable doubt.
It is the rule in Michigan that error may not be assigned to a jury charge unless objection is made before the jury retires. OCR 1963, 516.2. Defense counsel was properly afforded the opportunity, at trial to raise any objections that he might have had. Not having objected, he is precluded from claiming error on appeal unless there is a miscarriage of justice. People v Fry, 27 Mich App 169 (1970); People v Frazier, 33 Mich App 250 (1971).
At the close of the charge, both counsel indicated their satisfaction with the court’s instructions. The record discloses no miscarriage of justice, and the instructions read as a whole stated to the jury the law governing this case.
This Court has repeatedly held that in the absence of manifest injustice, we will not review evidentiary questions not raised in the trial court. People v Gill, 12 Mich App 383 (1968); People v Maglaya, 17 Mich App 379 (1969); People v Belcher, 29 Mich App 341 (1971). Defendant’s allegations of improper admission of evidence and his reliance upon the authority he cites are misplaced. The clear showing of injustice necessary to require attention by this Court, without being first preserved by timely objection, has not been demonstrated. The test on review of a criminal case is not whether there were some irregularities, but whether the defendant had a fair trial. People v McClure, 29 Mich App 361 (1971). The court’s discretionary conduct of the trial and the charge given to -the jury did not reversibly interfere with, defendant’s constitutional right to a fair trial.
Defendant’s final issue challenges the sufficiency of the evidence to convict. Conflicting testimony was presented and it was properly left to the jury to resolve the conflict. People v Blackwell, 17 Mich App 377 (1969); People v Clark, 34 Mich App 70 (1971). The verdict reflects the jury’s disbelief of the testimony of defendant’s alibi witness. Employee Duane Bull testified that all three robbers had guns. Witness Ralph Howard testified that he recognized defendant and that as he was ushered into another part of the station, defendant was standing near the cash register. The instant record reflects sufficient evidence of defendant’s involvement, which if believed, supports the jury’s verdict of guilty beyond a reasonable doubt. People v Pigues, 33 Mich App 349 (1971).
Affirmed.
MCLA 750.529; MSA 28.797. | [
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Per Curiam.
Samuel Crittle was convicted of robbery armed by a jury in Berrien County. MCLA 750.529; MSA 28.797.
The victim of the alleged offense testified that on April 7, 1970, defendant entered the grocery store where she worked. He produced a toy handgun and stated, “This is a hold-up”. She gave him the folding money from the register which he took and fanned out on the counter. He had a mask, but didn’t put it over his face because she already knew who he was, and for this reason he stated he should shoot her.
She said, “Please don’t shoot me”. He stood there for a minute, gave the money back to her and said it was an April fool’s joke. Thereafter, he ordered and paid for one bottle of beer and left.
Defendant was arrested, adjudged guilty, and his motion for a new trial was denied. From this denial, defendant appeals.
In the motion for a new trial, and on appeal, defendant claims reversible error in jury instructions. There was no objection to the court’s jury charge. G-CB 1963, 516.2 controls and requires that counsel object to alleged errors before the jury retires if he expects to rely upon such alleged errors on appeal. The no objection-no review rule applies unless there is a miscarriage of justice. People v. Fry (1970), 27 Mich App 169; People v. Turner (1971), 31 Mich App 44.
Two new issues are briefed on appeal. One concerns an alleged constitutional right violation and the second concerns an alleged prejudicial remark by the trial judge. This Court will not entertain issues raised for the first time on appeal unless a clear injustice has been demonstrated. People v. Scott (1970), 23 Mich App 568; People v. Calvin (1970), 28 Mich App 568.
The record discloses no miscarriage of justice.
Defendant contends:
1. Because the testimony of police officers was in direct conflict, there was a lack of general credibility and weight, amounting to reversible error.
2. The specific intent required in armed robbery was negated by defendant’s intoxicated condition, referred to by witnesses for the prosecution.
3. The necessary “taking” required by law was not committed by defendant.
Conflicting testimony was presented and it was properly left to the jury to resolve the conflict. Peo ple v. Blackwell (1969), 17 Mich App 377; People v. Clark (1971), 34 Mich App 70.
We do not weigh conflicting evidence on appeal in a criminal case. People v. Hogan (1967), 9 Mich App 78.
The degree of intoxication is a question of fact and its determination is a function of the jury. People v. Kelley (1970), 21 Mich App 612; People v. Green (1970), 26 Mich App 329. The required criminal intent can be inferred from defendant’s actions. People v. Gill (1967), 8 Mich App 89, 93; People v. Gilliam (1970), 27 Mich App 314, 317.
The jury listened to the witnesses and after court instruction found the defendant was not so intoxicated as to negate the requisite criminal intent to commit the crime. We are not persuaded to rule otherwise.
The element of asportation in a charge such as this is established by any movement of the goods. People v. Anderson (1967), 7 Mich App 513; People v. John W. Ragland (1971), 34 Mich App 624.
The “from his person or in his presence” element is established upon proof that the property was so in the possession or under the control of the victim that violence or putting in fear of violence was needed to sever such possession or control. People v. Moore (1968), 13 Mich App 320, 323; People v. McCray (1969), 17 Mich App 596, 598.
Application of these principles to the instant case supports a finding that an intended armed robbery occurred. We conclude that there was sufficient evidence, if believed by the jury, to justify a finding of guilt beyond a reasonable doubt.
Affirmed. | [
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Danhof, J.
Defendant was arrested and charged with murder in the second degree, MCLA 750.317; MSA 28.549. Preliminary examination was held on November 4,1970, and defendant was bound over for trial on a charge of second-degree murder. The jury trial began on December 8, 1970. On the third day of trial, during the cross-examination of Detective Quain, the following occurred:
Cross-examination by Mr. Davidow:
“Q. Did you know that Mr. Maguire was challenged to submit to a lie detector test?
“Mr. Turton: Your Honor, I ask that the jury be-excused.
“The Court: The jury may be excused.
[The following had in the absence of the jury.}
“Mr. Turton: I am extremely sorry this happened. Counsel, with his years at the bar, knows better than this, and I know he does, and so does the court. I am going to have to ask for a mistrial under the circumstances.
“The Court: I think I will have to give it. I had this before.
“Mr. Davidow: If the court please, may I be heard in this respect, first. I am familiar with the rule. I have had a case before the Supreme Court of our state on this issue. However, we have a statement that was taken under the direction of Mr. Turton in which Mr. Maguire was asked would he submit to a lie defector test, and Mr. Maguire said yes.
This issue is available to the defendant only, not the prosecution, about reference—
Wait until I get through, sir.
“Mr. Turton: I haven’t said anything.
“Mr. Davidow: You stood up.
“Mr. Turton: You have been standing around here. “Mr. Davidow: If counsel needs the exercise, I— “Mr. Turton: Kefep right on talking.
“Mr. Davidow: Your Honor, do I need this smartalecking on the part of counsel?
I can find the exact case, if the court please.
“Mr. Turton: The problem is he made the statement here. There is no question of our bringing it up or ever referring to it.
“Mr. Davidow: This is a matter for the defendant and the defendant only, but the examination of Mr.
Maguire, without benefit of counsel, following these hours of interrogation in a closed, car, following his being arrested, he having told the entire story which is consistent only with innocence, he was questioned whether or not he would submit to a lie detector test and he said yes and that was never accepted. I think we have the right to show that to the jury to show where the truth is.
“The Court: I am afraid I will have to grant a mistrial.
“Mr. Davidow: Might I ask, under the circumstances, if the' court please, that we have, the defendant admitted on bail?
“The Court: No.
“Mr. Davidow: This charge is absolutely irresponsible and unjustified.
“The Court: I don’t see it that way.
“Mr. Davidow: I want to say, the purpose of the record, if the- court please, and I say this in all seriousness, I want to make it clear here so there will be no misunderstanding on the part of the court, it is my opinion the examination failed to disclose any element of murder, first or second degree. I seriously doubt whether any other offense was shown, and that the defendant was entitled to admission on bail. The mere pendency of this charge operates in this instance as a denial of bail, and I charge, if the court please, that counsel for the prosecution, Mr. Turton, has deliberately insisted upon an extraordinary, unjustified charge to deny this man release on bail and punish him while this case is pending.
“The Court: Prom what testimony I have heard, I feel it is clearly a case of second-degree murder. “Bail denied.
“Mistrial granted.
“He will be referred to the sheriff.
“Bring in the jury.”
Thereafter the trial judge indicated that a retrial would be scheduled and defendant filed a mo tion to dismiss on the grounds that the defendant had once been placed in jeopardy. The motion was denied by the trial court on December 21, 1970. On February 12, 1971, this Court granted leave to appeal and remanded in order that bail might be set for the defendant.
Defendant urges that to retry him for second-degree murder in light of the trial court’s declaration of a mistrial would be to place him twice in jeopardy for the same pífense in violation of the double jeopardy clause of the US Const, Am V, made applicable to the states in Benton v Maryland, 395 US 784; 89 S Ct 2056; 2§ L Ed 2d 707 (1969). Thus, the question posed is, under what circumstances may a defendant be retried after a trial judge has declared a mistrial; in this case on motion of the prosecutor.
In a recent opinion, Chief Judge Lesinski ably outlined the current law on double jeopardy. See People v Gardner, 37 Mich App 520 (1972). We see no reason to reiterate here what he said in Gardner, supra, except that we must “look at the circumstances of the case to determine whether the trial judge correctly determined, in a ‘scrupulous exercise of judicial discretion,’ that a manifest necessity prevented the ends of public justice from being served by a continuation of the proceeding”. Gardner, supra, p 531.
In United States v Jorn, 400 US 470, 486; 91 S Ct 547, 557-558; 27 L Ed 2d 543, 557 (1971), Justice Harlan said:
“Yet we cannot evolve rules based on the source of the particular problem giving rise to a question' whether a mistrial should or should not be declared, because, even in circumstances where the problem reflects error on the part of one counsel of the other, the trial judge must still take care to assure him self that the situation warrants action on his part foreclosing the defendant from a potentially favorable judgment by the tribunal.
“In sum, counsel for both sides perform in an imperfect world; in this area, bright-line rules based on either the source of the problem or the intended beneficiary of the ruling would only disserve the vital competing interests of the government and the defendant. The trial judge must recognize that lack of preparedness by the government to continue the trial directly implicates policies underpinning both the double jeopardy provision and the speedy trial guarantee. Cf. Downum v United States, 372 US 734; 83 S Ot 1033; 10 L Ed 2d IpO (1963). Alternatively, the judge must bear in mind the potential risks of abuse by the defendant of society’s unwillingness to unnecessarily subject him to repeated prosecutions. Yet, in the final analysis, the judge must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all,, to conclude his confrontation with society through the verdict of a tribunaf he might believe to be f avorably disposed to his fate.”
The question is whether the trial judge in this case, taking into account all of the circumstances of the case, exercised sound discretion to ascertain that there was a manifest necessity for the granting of the mistrial. The record discloses but one reference to a lie detector test. There was no effort made by the judge to correct the statement, by an instruction and then reprimanding the defense attorney from further injecting it into the proceedings. This is not a case of continued improper activity on the part of defense counsel after a ruling by the trial judge, but rather, one isolated instance. We have previously held that because the results of a polygraph test are incompetent evidence the offer to take such a test, or the refusal to take it, is imma ferial and should be excluded upon proper objection. People v Paul F. Baker, 7 Mich App 471 (1967);. People v McLaughlin, 3 Mieh App 391 (1966). Since the record discloses that the defense attorney did not ask for the mistrial, nor did he consent to it, it is our conclusion, after an examination of the entire record, that the one reference to a lie detector test did not create such a manifest necessity which prevented the ends of public justice from being served by a continuation of the proceedings. .
Therefore, we conclude under the circumstances of this case reprosecution of the defendant would violate the double jeopardy provisions of the Fifth Amendment of the Constitution.
Reversed and defendant is ordered discharged.
All concurred.
To the members of the profession we emphasize that this case is limited strictly to its facts. It is not to be interpreted as an open invitation to defense counsel to engage in such tactics which are calculated to induce the people to ask for a mistrial. Such conduct could create such a manifest necessity requiring a mistrial in order to assure that the ends of public justice would not be defeated. | [
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Memorandum Opinion.
The defendant was convicted on a jury verdict of the illegal sale of a narcotic drug. MCLA 335.152; MSA 18.1122.
An examination of the record and briefs discloses no reversible error by the trial court whereby defendant’s rights were prejudiced.
Affirmed. | [
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McGregor, J.
Defendant was convicted by a jury of armed robbery, MCLA § 750.529 (Stat Ann 1969 Cum Supp §28.797). On November 21, 1968, defendant was sentenced from 15 to 25 years in prison ; his motion for new trial was denied, and he appeals.
Defendant testified that on the night of the robbery of the bar in question, he was at the bar with a companion, and that they had a beer. His companion indicated that he had a revolver and told the defendant that he was going to rob the bar. The defendant told him not to do so, that “I (the defendant) know too many people around here.” Defendant testified further that his friend thereupon scolded him and told him that he would get another person to help him. Defendant asserts that he did not know that it was his companion’s intention to rob this bar until after he got into the bar and had his beer. Although he testified that he never discussed robbing this bar, he did admit that he was present as a passenger in a car during a discussion about a robbery, with two men who he claims did commit the robbery. Defendant stated that, upon leaving the bar, he went in one direction, and his companion went in another to get another person to help him with the robbery.
Defendant testified further that the two alleged holdup men came to the porch where he was sitting, that the three of them went inside, and that he watched them count out $90, the proceeds from the robbery, and divide it equally. The owner of the bar testified that he was held up by two armed men, one of them being the defendant, and that he and a barmaid and five or sis customers were present.
In this appeal, defendant claims that the police made certain prejudicial remarks to the two identifying witnesses, the bar owner and the barmaid, which tended to suggest and reinforce their identifications of the defendant. Defendant contends that, after one witness identified the defendant at the lineup, the police informed him (the bar owner) that “he was the man who was supposed to have held me up.” In addition, the barmaid testified that the police told her, after she had selected the defendant’s photograph, that she had picked out the right man.
Although the robbery in question was committed in the nighttime, the bar was well lighted. Both witnesses had ample opportunity to view the defendant, since the robbery took 10 to 15 minutes to consummate, and the defendant wore no mask or other facial covering other than sunglasses.
We shall first deal with the bar owner’s allegedly tainted lineup identification. About a month after the robbery, the bar owner positively selected the defendant’s photograph from some pictures. Although the exact number of pictures which he viewed was not disclosed, it was described as more than one batch. About a week later, this witness again selected the defendant from a lineup consisting of six men. It was after this lineup that the police allegedly made a statement concerning the witness’s identification of defendant. This Court also notes that the witness was particularly candid when testifying, and readily admitted that he was unable to make a positive identification of the other robber. The defendant makes no other appellate allegations other than that the statement by the police rendered improper the in-court identification. We conclude that, under the circumstances, the lineup procedure was not “unnecessarily suggestive and conducive to irreparable mistaken identification” so as to deprive the defendant of due process. Stovall v. Denno (1967), 388 US 293, 302 (87 S Ct 1967; 18 L Ed 2d 1199, 1206).
We next turn to the issue of whether the barmaid’s identification by photograph was so “impermissibly suggestive as to give rise to a very substantial likelihood of the irreparable misidentification.” Simmons v. United States (1968), 390 US 377, 384 (88 S Ct 967; 19 L Ed 2d 1247, 1253). This witness also had ample opportunity to observe the defendant throughout the robbery, and at one point, the defendant allegedly grabbed her hair. About a month later, she was shown an unspecified number of pictures from which she selected the defendant’s. It was subsequent to this selection that the police informed her that she had picked the right man.
After the photographic identification, the witness identified this defendant in a lineup. Defendant’s principal allegation of error is that the police made this single statement to the witness, after her photographic selection of the defendant. Defendant does not assert that, prior to the photographic identification, the barmaid was unknowingly led to believe by suggestion or intimation of any kind that the defendant’s photograph would be among those shown to her. The testimony of the witness, as well as that of the bar owner, was unshaken upon cross-examination. No reversible error was committed here.
Defendant alleges on appeal that the trial judge did not give proper instructions to the jury. However, no objections to the instructions were made at trial. In the absence of a miscarriage of justice, this Court will not consider this alleged error when raised for the first time on appeal. People v. Floyd (1968), 15 Mich App 284, 288.
Defendant claims prejudicial error was committed by the trial court in its comments on the evidence. This Court has held that Michigan statutes and court rules permit comment by a judge “on the evidence, testimony and character of any witnesses, as in his opinion the interest of justice may require.” CL 1948, § 768.29 (Stat Ann 1954 Rev § 28.1052); GCR 1963, 516.1 and 516.2. We have examined the judge’s comments and, although they may have fallen short of the ideal, they are not so prejudicial as to warrant reversal.
Affirmed.
All concurred. | [
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Per Curiam.
Defendant was charged with two counts of embezzlement in violation of MCLA § 750.174 (Stat Ann 1962 Rev § 28.371), and found guilty by a jury on both counts in January of 1969.
On February 12, 1969, he was sentenced to spend four and one-half months in Ionia County jail. He was also placed on probation for three years and ordered to make restitution.
The defendant appeals from the conviction and sentence contending that the evidence offered by the people was insufficient to support a finding beyond a reasonable doubt that the necessary fraudulent intent was present.
There was no dispute in the testimony that defendant had, on two different occasions, while employed as an automobile salesman for Coe-Hayden Motors in Ionia, withheld deposits made to him for the purchase of automobiles, the first from John J. Lalley on May 1, 1967 in the amount of $600.00 and the second from Richard A. Hoffman on July 8,1967 in the amount of $813.00. Both customers were given receipts but they were blank form receipts and not the regular form used by the employer in its business.
Mrs. Geraldine Koenig, office manager for CoeHayden Motors, testified that on several occasions she asked defendant about the balance due in the Hoffman transaction and that each time she was assured that payment was on its way.
Orson Coe III, vice-president of Coe-Hayden Motors, testified that upon inquiry, he and his partner, James Hayden, learned from Mr. Lalley of the $600.00 deficit. The two then called on defendant at his house at which time he admitted the shortage and explained that he needed the money for bills. At that time, defendant went on to deny any similar activity with other sales,
James Hayden testified that when defendant was first confronted regarding ’Mr. Lalley’s $600.00 he asked, “Is that all; is that all yon found?” Hayden further testified that when defendant was confronted regarding Mr. Hoffman, he admitted juggling the accounts to pay his bills and that the matter had snowballed to a point where he couldn’t pay it back in one transaction.
At trial, defendant claimed that the money which he had withheld was part of a bonus of $5.00 per car sold during the year, and was due to him. This was denied by Orson Coe, Sr., who testified that the bonus was discretionary at the end of the year, that his salesmen were never “entitled” to the bonus during the year and that defendant knew this. Mrs. Koenig and Mr. Hayden corroborated this testimony. Moreover, Mr. Hayden testified that upon discovery, defendant made no such claim of right to the funds withheld. He also testified that defendant was aware of the company policy against salesmen withholding funds.
The question then as to whether the people have proved their case against defendant rests on the relative credibility of the various witnesses, including the defendant.
We find that there was sufficient competent evidence presented to support the verdict beyond a reasonable doubt, if it were believed.
The question was properly presented to the jury, and their decision is not against the great weight of the evidence.
Affirmed. | [
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Per Curiam.
The plaintiff here received a judgment of $85,000 against defendant, Kenny, an uninsured motorist, for injuries suffered when Kenny turned his car directly into the path of plaintiff’s motorcycle.
The plaintiff, rightly fearing that Kenny would be uncollectible, also sued defendant, Raymond & Anderson, Inc. The plaintiff’s claim against Raymond & Anderson, Inc. is that it allowed Kenny to use its automobile dealership license plates in violation of MCLA § 257.256 (Stat Ann 1968 Rev § 9.1956).
The trial court, sitting without a jury and relying on Endres v. Mara-Rickenbacker Co. (1928), 243 Mich 5, found that although there was a violation of the statute, the violation was not the proximate cause of the accident. The charge against Raymond & Anderson, Inc. was therefore dismissed. It is from this dismissal that plaintiff appeals.
On appeal the plaintiff’s sole issue is whether an automobile dealer should be estopped from denying ownership of a vehicle which is illegally bearing, with the dealer’s knowledge and consent, license plates belonging to the dealership.
Plaintiff acknowledges the Michigan rule as set down by Endres, supra, at p 7, is against him. However, the plaintiff urges this Court to repudiate the Endres decision and adopt the rule of another jurisdiction, New York. See Reese v. Reamore (1944), 292 NY 292 (55 NE2d 35); Switzer v. Aldrich (1954), 307 NY 56 (120 NE2d 159).
We do not view the Endres rule as the majority of the Court in Abendschein v. Farrell (1968), 11 Mich App 662, 679 viewed the lex loci delicti rule established as the law in Michigan by Kaiser v. North (1939), 292 Mich 49. The Endres rule is not an empty shell, the destruction of which only awaits action of its creating tribunal. The Endres rule is still supported by ample authority in this as well as other jurisdictions. See 99 ALR2d 904, § 2(a), pp 906-909.
Further, we find no indication that if the Supreme Court were to he presented with the issue before us here that it would decide it in any way contrary to Endres. See generally Abendschein, supra, (Levin, dissenting) at p 680.
Bound as we are under these circumstances by Endres, we cannot but affirm.
Affirmed. Costs to appellee. | [
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Per Curiam.
The question before us is whether 1957 PA 177 applies to any untried charge which carries a possible punishment of imprisonment against any inmate regardless of whether the offense is committed after imprisonment or whether the offense carries a mandatory consecutive sentence.
I
On August 23, 1978, following a preliminary examination, the prosecutor filed an information in Recorder’s Court, Case No. 78-04944, charging defendant with possession of 6.8 grams of heroin, possession of five tablets of diazepam (Valium), and possession of five tablets of codeine. The arrest warrant had been issued on July 31, 1978.
On August 18, 1978, after a preliminary examination in Recorder’s Court, Case No. 78-05176, an information had been filed charging the defendant with possession of 5.7 grams of heroin and possession of a firearm during the commission of a felony. The warrant in that case had been issued on August 9, 1978.
Trial of both cases was set for December 5, 1978. When the defendant failed to appear, a bench warrant was issued in both cases. In fact, the defendant had been returned, as an escapee, to Jackson prison on or about November 4, 1978. He was released on April 13, 1979. On July 13, 1979, defendant’s counsel filed a motion to dismiss both cases, alleging violation of MCL 780.131; MSA 28.969(1), which provides that "such inmate shall be brought to trial within 180 days” after the prosecutor receives notice. The trial court conducted a hearing on the motion on July 17, 1979; the prosecutor responded only that he did not have actual notice of the incarceration. The trial court dismissed the case with prejudice on July 25, 1979.
The prosecutor appealed, and the Court of Appeals concluded that the 180-day rule was applicable even though the crimes with which the defendant was charged were allegedly committed while he was a prison escapee and any sentences to be imposed upon conviction of those offenses would be consecutive to the term being served. MCL 768.7a; MSA 28.1030(1). It ordered a remand to the trial court for a determination whether the prosecutor should have known that the defendant was incarcerated. 105 Mich App 155; 306 NW2d 432 (1981).
The prosecutor has applied for leave to appeal.
II
The act in question provides:
"Sec. 1. Whenever the department of corrections shall receive notice that there is pending in this state any untried warrant, indictment, information or complaint setting forth against any inmate of a penal institution of this state a criminal offense for which a prison sentence might be imposed upon conviction, such inmate shall be brought to trial within 180 days after the department of corrections shall cause to be delivered to the prosecuting attorney of the county in which such warrant, indictment, information or complaint is pending written notice of the place of imprisonment of such inmate, and request for final disposition of such warrant, indictment, information or complaint. The request shall be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the parole board relating to the prisoner. The written notice and statement provided herein shall be delivered by certified mail.” MCL 780.131; MSA 28.969(1).
"Sec. 2. The department of corrections shall notify each prisoner of any request forwarded under the provisions of section 1 of this act.” MCL 780.132; MSA 28.969(2).
"Sec. 3. In the event that, within the time limitation set forth in section 1 of this act, action is not commenced on the matter for which request for disposition was made, no court of this state shall any longer have jurisdiction thereof, nor shall the untried warrant, indictment, information or complaint be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.” MCL 780.133; MSA 28.969(3).
The prosecutor argues that the 180-day rule applies only where the pending charge would allow for concurrent sentencing. This is the position first taken by a panel of the Court of Appeals in People v Loney, 12 Mich App 288, 292-293; 162 NW2d 832 (1968):
"The purpose of the statute is clear. It was intended to give the inmate, who had pending offenses not yet tried, an opportunity to have the sentences run concurrently consistent with the principle of law disfavoring accumulations of sentences. This purpose, however, does not apply in the instance of a new offense committed after imprisonment, nor where the statute as in the case of an escape or attempted escape, sets up a mandatory consecutive sentence. The Legislature was not concerning itself with the need for dispatch in the handling of a charge brought against an inmate for offenses committed while in prison.
"For the foregoing reasons, it is the opinion of this Court that the 180-day statute does not and was not intended to apply to offenses committed while in prison and for which mandatory consecutive sentences are provided.”
In People v Moore, 96 Mich App 754, 761-762; 293 NW2d 700 (1980), a panel of the Court of Appeals disagreed with the Loney interpretation:
"We find no ambiguity in the 180-day rule statute that would permit us to make exceptions in the application of its plain language. Even if it were reasonable and otherwise valid to distinguish, as Loney did, between inmates who commit criminal offenses prior to incarceration and those who commit them subsequently, the distinction is one that the Legislature, not this Court, should make. However, our decision here rests not only on the concept of separation of powers, but also upon our belief that the rationale underlying Loney is no longer completely valid.
"The Loney Court justified its result on what it believed was the intent of the Legislature in passing this statute. Loney found this intent to be that inmates of state penal institutions should serve concurrent, rather than consecutive, sentences. Because inmates who commit criminal offenses while incarcerated are not entitled to concurrent sentencing, see MCL 768.7a; MSA 28.1030(1), an incarcerated defendant was not prejudiced by delay of trial. However, since Loney was decided the Michigan Supreme Court has recognized that the 180-day rule protects more than just a defendant’s right to serve concurrent sentences.
"In People v Hill, 402 Mich 272, 280; 262 NW2d 641 (1978), the Supreme Court found that the purpose of the Í80-day rule was to 'secure to state prison inmates their constitutional right to a speedy trial’. As set forth in the United States Constitution, US Const, Am VI, and the Michigan Constitution, Const 1963, art 1, § 20, the right of an accused to a speedy trial does not depend upon whether the charged offense was committed prior to or during incarceration for another crime. Therefore, we hold that Loney was wrongly decided and that persons such as defendant who commit crimes while incarcerated are entitled to the protection of the 180-day rule.”
Since Moore, several panels of the Court of Appeals have split on the issue.
III
We find the extent of the act’s coverage to be unambiguously plain, and it is to be applied as written. The title, which is an expression of the law’s object, declares it too to be "An act to dispose of untried warrants, indictments, informations or complaints against inmates of penal institutions of this state”. The corpus of the act sets forth the methods of disposition. Charges are either to be tried within a specified time or dismissed. The language of the statute expressly provides that it applies to "any” untried charge against "any” prisoner, "whenever” the department of corrections shall receive notice of that charge. MCL 780.131; MSA 28.969(1).
The statute imposes three basic conditions for the 180-day rule to affect an untried charge: (1) the charge must be against a prison inmate, (2) the offense must be one for which a prison sentence might be imposed upon conviction, and (3) notice must be received by the department and a request delivered to the appropriate prosecuting attorney. The statute does not specify that the type of sentence, concurrent, mandatory consecutive, or discretionary consecutive, determines the reach of the provision. The statute refers only to "a prison sentence”.
The statute may have several salutary effects, no one of which should be mistaken for the sole purpose of the act. This Court indicated in People v Collins, 388 Mich 680, 689; 202 NW2d 769 (1972), in People v Castelli, 370 Mich 147, 153; 121 NW2d 438 (1963), and most recently in People v Hill, 402 Mich 272, 280-282; 262 NW2d 641 (1978), that one purpose of the statute was to assure the defendant’s right to a speedy trial while an inmate. It may be more appropriate to perceive the act as having the effect of fostering the right to a speedy trial, while recognizing that the object of the act is to dispose of untried charges against prison inmates.
Other salutary effects may include: protecting concurrent sentences,, minimizing obstructions to prison rehabilitation, aiding in preventing untried charges from affecting early release, and clearing court dockets and prosecutors’ offices of stale charges.
We hold that the statute applies to any untried charge which carries a punishment of imprisonment in a state penal institution against any inmate, even if the offense was committed while in prison or carries a mandatory consecutive sentence. Since we are convinced that the objective of the act would not be furthered by applying this decision to cases where final disposition has occurred and where the issue does not involve guilt or innocence, this decision shall only apply to existing and future untried warrants, indictments, informations or complaints and to cases pending on direct review where the issue is preserved.
Pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we affirm the judgment of the Court of Appeals.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
MCL 780.131 et seq.; MSA 28.969(1) et seq.
Compare People v Moore, 111 Mich App 633; 314 NW2d 718 (1981), and People v Grandberry, 102 Mich App 769; 302 NW2d 573 (1980), with People v Hegwood, 109 Mich App 438; 311 NW2d 383 (1981), People v Marcellis, 105 Mich App 662; 307 NW2d 402 (1981), People v Pitsaroff, 102 Mich App 226; 301 NW2d 858 (1980), People v Anglin, 102 Mich App 118; 301 NW2d 470 (1980), and People v Ewing, 101 Mich App 51; 301 NW2d 8 (1980).
Lansing v Lansing Twp, 356 Mich 641, 649-650; 97 NW2d 804 (1959).
Const 1963, art 4, § 24.
The title does not declare that it is an act to prevent law enforcement officials from using dilatory tactics with respect to untried charges against inmates in order to assure that a concurrent sentence is not effectively rendered a consecutive one. Nor does the title provide that it is an act to secure a state prisoner his speedy trial rights.
Although the decision in Castelli suggests otherwise, not every compliance with the 180-day rule embodied in the act will automatically satisfy the constitutional requirement of speedy trial. The constitutional protection exists independent of any statutory protection. What is evident is that the effect of the statute helps enable the defendant to present his or her defense. One might imagine the difficulty that a defendant would have in trying to locate witnesses who were inmates at the time the untried offense was committed if too long a time elapsed between the commission and the trial.
The cost of bringing a stale, untried charge to trial, including transportation, security and the actual prosecution of the inmate, may well, at some point, outweigh the benefits to society in proceeding to trial.
Despite this Court’s current view of the nearly 25-year-old statute, the fact remains that uncertainty existed as to its scope. The prosecutor apparently relied in good faith on the contrary statutory construction by the Court of Appeals in 1968. Indeed, other panels of the Court of Appeals followed or quoted with approval the decision in People v Loney, supra. See People v Parker, 21 Mich App 399; 175 NW2d 879 (1970); People v Theodore Williams, 66 Mich App 521; 239 NW2d 653 (1976). Further, even after a panel of the Court of Appeals rejected the Loney construction in People v Moore, supra, other panels continue to follow the Loney construction. See fn 2, supra. | [
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. Holbrook, J.
Plaintiff herein is a resident of Jackson county and administratrix of the estate of her deceased son who was a resident of Michigan at the time of his death, the result of being fatally injured in an automobile accident occurring in the state of Kentucky. An agreed statement of facts has been filed which is restated in part as follows:
“Defendant is a resident of and a duly-licensed attorney-at-law in the state of Kentucky, who, in May, 1963, appeared at a seminar of lawyers at Saginaw, holding himself out to be a specialist in personal injury and negligence law and practice, and lectured to Michigan lawyers on the subject, said seminar continuing for some three days.
“The attorney for plaintiff in this cause, who had been retained by plaintiff in the original case, which was required to be filed in Kentucky, conferred with defendant at Saginaw as to the claim for death of plaintiff’s son and, upon defendant’s representations that he was fully qualified and competent to represent plaintiff in the courts of Kentucky in such action, retained defendant for such purpose, by letter agreement dated November 7, 1963, a copy of which is hereto attached and marked Exhibit E.
“After said defendant had filed the action in the Kentucky court, he again appeared in Michigan at a seminar of Michigan lawyers on personal injury law, this time at Detroit and, at his request, the attorney for plaintiff went to Detroit with plaintiff and her husband, where they met with defendant, who discussed the pending case with them, preparing their testimony, and advising them concerning their case, as attorney for plaintiffs, in preparation for the trial thereof.
“The case was tried at Louisville, Kentucky, in December, 1965, in the course of which trial, plaintiff claims defendant in the case offered to pay plaintiff the sum of $27,500 in settlement of the claim for death of her son, which offer defendant Horen advised plaintiff should not be accepted and, acting upon such advice, the settlement offer was rejected and a verdict was thereafter returned for defendant in said action and judgment entered thereon.
“Defendant filed an appeal from said judgment, but thereafter failed to take the necessary steps in prosecuting said appeal in accordance with the rules and laws of the state of Kentucky governing such appeals, which failure was concealed from the attorney for plaintiff by the refusal of defendant to answer written inquiries made to defendant in June, July, September, October and December, 1966, during which time defendant, by his inaction and refusal to inform plaintiff’s attorney thereof, allowed the rights of plaintiff in said appeal to lapse and plaintiff’s attorney learned, from the Kentucky Court of Appeals, in February, 1967, that said appeal had been dismissed on October 11, 1966.
“On April 14, 1967, plaintiff filed suit against defendant in the circuit court for the county of Jackson, Michigan, to recover damages claimed to have been sustained by decedent’s estate as the result of defendant’s handling of said lawsuit in Kentucky. In her complaint, plaintiff alleges defendant ‘was guilty of negligence, gross negligence and fraudulent conduct in failing in the performance of his duties in the representation of said estate and in the prosecution of said appeal, as a direct and proximate result of which said appeal was dismissed on motion of defendant without hearing on the merits’. A summons and a copy of the complaint were served upon defendant by registered mail on December 11, 1967, this service being made by order of court under GrCR 1963, 105.8.”
Defendant filed a motion for accelerated judgment based upon tbe claim that the Michigan court did not have a general or limited personal jurisdiction over him. It was plaintiff’s claim at the hearing on the motion that the Jackson county circuit court had limited personal jurisdiction over defendant under the provisions of CLS 1961, § 600.705(1), (2) (Stat Ann 1962 Rev § 27A.705[1], [2]) which reads:
“The existence of any of the following relationships between an individual or his agent and the state shall constitute a sufficient basis of jurisdiction to enable the courts of record of this state to exercise limited personal jurisdiction over such individual and to enable such courts to render personal judgments against such individual or his representative arising out of the act or acts which create any of the following relationships:
“(1) The transaction of any business within the state.
“(2) The doing or causing any act to be done, or consequences to occur, in the state resulting in an action for tort.”
The trial court ruled that the defendant’s motion for an accelerated judgment would be denied because plaintiff had shown a sufficient basis for limited personal jurisdiction over defendant under CLS 1961, § 600.705(2), but ruled that there was no basis for limited personal jurisdiction under CLS 1961, § 600.705(1).
The defendant, claiming error in the denial of the motion for accelerated judgment, has appealed, and the plaintiff has cross-appealed claiming error by the trial court in its ruling that the act or acts of the defendant in the state of Michigan did not con stitute the transaction of any business within the state.
We will first consider the cross-appeal of plaintiff which asserts that defendant is subject to the limited personal jurisdiction of the circuit court for Jackson county because of the relationship of the defendant and the state, under CLS 1961, § 600.705 (1):
“The transaction of any business within the state.” (Emphasis supplied.)
The plaintiff and her attorney, Mr. Kelly, were residents of Michigan; the defendant was a licensed attorney at law and resident of Kentucky. In May of 1963, defendant came to Saginaw, Michigan, to lecture at a seminar of lawyers that lasted for three days. At this seminar defendant held himself out as a specialist in personal injury and negligence law and practice. His role or business could properly he termed as an attorney’s expert coming to Michigan to instruct and counsel the attorneys present. He received remuneration for these services, and in addition was available for counseling with any of the attorneys present for any individual cases including the arranging for his expert services. We conclude that this is true because one of the attorneys present, Mr. Kelly, talked to defendant at the Saginaw seminar concerning plaintiff’s case in Kentucky for the death of her son. At the time, Mr. Kelly was in charge of the ease for plaintiff, and the conversations between Mr. Kelly and the defendant culminated in the retaining of defendant to prosecute the case in Kentucky. The business of one attorney hiring another attorney, expert in a particular field, to process a case often takes place in the usual course of business. Sometime later, defendant came to Detroit where a similar seminar was held as at Saginaw. Defendant served at that seminar in tbe. same capacity as he had at Saginaw. While .in Detroit, defendant requested plaintiff and Mr. Kelly to meet with him to discuss the case pending in the state of Kentucky. Plaintiff, her husband, and Mr. Kelly went to Detroit and met with defendant who discussed the case with them for the purpose of making preparations for the presentation of their testimony, and other arrangements for the trial.
The question raised on plaintiff’s cross-appeal is: were these acts of defendant sufficient under the statute to constitute the transaction of any business within the state? . . .
Black’s Law Dictionary (4th Ed), p 1668, defines transacting business as “doing or performing series of acts occupying time, attention, and labor of men for purpose of livelihood, profit or pleásure.” Also, see Westor Theatres v. Warner Bros. Pictures, Inc. (D NJ, 1941), 41 F Supp 757; Crawford Transport Company v. Chrysler Corporation (ED Ky, 1961), 191 F Supp 223; and Wing v. Challenge Machinery Company (SD Ill, 1959), 23 FRD 669.
In 1 Honigman and Hawkins, Michigan Court Rules Annotated (2d Ed), p 125, it is stated:
“Limited personal jurisdiction is the .power to enter a binding judgment in personam, limited, however, to claims arising out of the act or acts creating the jurisdictional relationship between defendant and the state. RJA §§ 705, 715, 725, and 735.
“Por example, the transaction of any business within the state will subject a defendant to jurisdiction limited to claims arising out of the business transacted within the state. RJA §§705(1) (individuals), 715(1) (corporations), 725(1) (partnerships), and 735(1) (associations). Such jurisdiction may validly be applied to individuals and partnerships as well as corporations. Henry L. Doherty & Co. v. Goodman (1935), 294 US 623 (55 S Ct 553; 79 L Ed 1097); and see ALI Restatement of the Law Second, Conflict of Laws, Tentative Draft No 3, 1956, §§ 85, 86 and 92. International Shoe Co. v. State of Washington (1945), 326 US 310 (66 S Ct 154; 90 L Ed 95, 161 ALR 1057); and see ALI Restatement of the Law Second, Conflict of Laws, Tentative Draft No 3, 1956, §§ 85, 86, and 92 [sic].”
While in Michigan on two different occasions, defendant held himself out as a lecturer and expert on negligence law, and while he was engaged in this business, he discussed with plaintiff’s Michigan counsel the business of becoming associated as counsel in plaintiff’s negligence case. We rule that this was a part of the contemplated business benefits to be derived by defendant in transacting the business of lecturing and advising the attorneys at the seminars on negligence law. We further rule that these acts that took place at the Saginaw seminar together with the acts of defendant in preparing for the trial of the action through consultations with plaintiff and her Michigan attorney in Detroit at. defendant’s request, constitutes the “transaction of any business in the state,” as required by the statute.
Because of our ruling on the cross-appeal of plaintiff that the trial court’s denial of defendant’s motion for an accelerated judgment was proper, we deem it unnecessary to rule on the appeal of defendant concerning the proper application of CLS 1961, § 600.705(2) to this case.
Affirmed. Costs to plaintiff.
All concurred. | [
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Per Curiam.
Plaintiff appeals from an amended default judgment entered on his motion in the trial court. On appeal, plaintiff raises and briefs four issues as the basis for appellate relief.
A review of the record presented to this Court indicates, at least inferentially, that the amended de fault judgment appealed from was the result of cooperation, negotiation and participation on the part of counsel for both parties. In our view, plaintiff’s present, uncorroborated statement that he moved for entry of that judgment in order to obtain a final reviewable judgment does not overcome the record inference. ¥e are not persuaded that plaintiff is not seeking appellate relief from the relief he sought and consented to in the trial court. This may not he done. Dora v. Lesinski (1958), 351 Mich 579.
We find it is unnecessary to discuss this case further.
Affirmed with costs to defendant. | [
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T. M. Burns, J.
On March 18, 1968, defendant entered a plea of guilty in the Washtenaw County circuit court to the charge of breaking and entering an occupied dwelling. After a presentence investigation was completed and a report submitted, the trial judge sentenced the defendant on August 9, 1968 to five years’ probation. Besides the usual conditions of probation, the trial judge imposed as an additional condition of probation that defendant was not permitted to play either college or professional basketball during the period of probation without the court’s consent.
Defendant on appeal asserts that this condition is invalid.
The defendant, a college basketball player of no small ability, is in school on an athletic scholarship which he would lose if he were not permitted to play. The people assert that since the trial court gave its permission for the defendant to play ball for his college, some seven months after the probation order, the question is now moot. Wé do not find it thus since such play as well as any possible professional offer is contingent on the court’s approval. Neither do we find that the defendant’s agreement to abide by such a probation provision waives his right to appeal and challenge the legality of the provision, as the people suggest. The defendant could understandably have believed that if he did not accept the probationary terms set down by the trial judge, the offer of probation would be revoked and he would be sent to jail. See People v. O’Hara (1879), 41 Mich 623, 624. Compare People v. Mulier (1968), 12 Mich App 28.
Although the trial court need not have granted probation in this, or any other case, once he decides to order probation rather than imprisonment the conditions he imposes on such probation must be lawful. MCLA § 771.3 (Stat Ann 1969 Cum Supp § 28.1133). See People v. Becker (1957), 349 Mich 476; People v. Baum (1930), 251 Mich 187; People v. Smith (1930), 252 Mich 4.
This Court said in City of Detroit v. Del Rio (1968), 10 Mich App 617, 620:
“It would serve no useful purpose to attempt to catalogue what may he ‘other lawful conditions of probation.’ The Court is not disposed to attempt what the legislature has avoided, and it is clear that considerable latitude is intended for the trial judge in imposing the conditions he may deem pertinent to the offense and appropriate to the rehabilitation of the offender.”
The trial judge stated no reason for the restriction, nor have the people explained how this restriction might be related to the defendant’s rehabilitation. On the other hand, the defendant has persuasively shown that the restriction on playing basketball is more likely to impede than to promote his rehabilitation. As no rational reason has been suggested in justification and as it appears that the restriction is more likely to impede rehabilitation than promote it, we conclude that it is not a “lawful provision” within the meaning of the statute.
Consequently, we reverse the trial court to the extent of this illegal provision, numbered 12 on the probation order.
Reversed.
Levin, P. J., concurred.
MCLA § 750.110 (Stat Ann 1969 Cum Supp § 28.305). | [
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R. B. Burns, P. J.
Appellant Evelyn Brown’s five children were made temporary wards of the Midland County probate court in December, 1966. On the petition of a court caseworker a hearing was held September 27,1967, to review the matter of the children’s custody. The caseworker testified that his opinion based on his investigation was that the three younger children should be made permanent' wards of the court. No other testimony or evidence was introduced to support this opinion. Mrs. Brown and a legal aid investigator testified in opposition to the caseworker. At the conclusion of the hearing the probate court discharged the eldest, Michael, as a court ward, continued' Timothy as a temporary ward, but made Bruce, Phillip, and Zella permanent wards of the court, terminating Mrs. Brown’s parental rights in these three children.'
Appellant filed a claim of appeal in circuit court alleging that the requisite burden of proof had not been met and that the order was against the preponderance of the evidence. Trial by jury was demanded but the parties subsequently stipulated that the matter would be submitted on the basis of the transcript of tbe probate court bearing, no additional proofs to be offered by-either side. Tbe parties further stipulated that should the circuit court’s judgment be favorable to appellant the probate court would be reversed and both physical and legal custody of the children be released to their mother. The circuit court affirmed the order, stating:
“This stipulation, in the opinion of the court, amounts to the submission of the matter below to this court on review in the nature of certiorari. The court will not quarrel with the stipulation made by counsel and will therefore consider the matter in’this way. If the matter had been submitted to the court on a general appeal and upon the basis of the errors assigned, the court would have treated the case differently and, in the event that the judgment of the probate- court below was found to be based upon insufficient testimony, physical custody and legal custody of the wards would not necessarily be released to the mother, but the case could well have been remanded to probate court for further consideration on the question of making the children permanent wards of the court. In the opinion of this court, jurisdiction as to said children insofar as temporary wards of the court is concerned would not be lost by any-irregularities in’the hearing on the question of making them permanent wards of the court. The court has carefully examined the testimony presented below and although the great portion of same is obviously hearsay, the court feels that sufficient facts were presented to justify the court below in making the order terminating the parental rights of Evelyn Brown.”
The circuit court erred in its method of review. It did so believing the stipulation required it to undertake a more restricted type of review. GCR 1963, 701.10 says, “Unless otherwise provided by law, review in the circuit court is to be a retrial of issues upon evidence to be introduced in the reviewing court.” The only limitation is that the questions to be reviewed are restricted to those raised in the claim of appeal. GrCB 1963, 701.5(2). Appellant filed a general claim of appeal. The only effect of the stipulation was to submit the transcript as if the testimony it contained was being presented de novo without the witnesses actually appearing. The court was still called upon to examine the quantity and quality of the evidence, to rule upon its admissibility, and to determine whether it was sufficient to justify the termina,lion of parental rights. The portion of the stipulation dealing with the disposition of the case was a nullity. It is the court’s function, not the parties’, to determine the proper resolution of the case. “The circuit court may render any judgment or make any order which should have been rendered in the lower court, and may grant such other relief as may be required for the just disposition of the appeal.” GCB 1963, 701.10. This applies with special force to probate appeals. 3 Honigman & Hawkins, Michigan Court Buies Annotated (2d ed), p 542. The case should have been treated in no other way than any other general appeal. Had it been so treated the result may well have been different as the transcript is replete with hearsay and uncorroborated allegation.
Beversed and remanded for proper review.
All concurred. | [
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Per Curiam.
This is one of those complicated and difficult line fence cases that raises many other concurrent matters requiring determination by the trial court. The case was heard by the Honorable Charles A. "Wickens, without a jury, and whose opinion very clearly sets forth the nature of the case and also makes findings of fact and conclusions of law. We deem it helpful to restate a part of the trial judge’s opinion which is as follows:
“The plaintiffs bring an action in Count I seeking damages against the defendants for wrongfully closing a ditch which was located upon the defendants’ own property but was used to drain a public road. This ditch was, in fact, closed by none of the defendants, but by the defendants’ father-husband (sic) some years ago, which would be more than six years prior to the starting of this lawsuit and the defense of the Statute of Limitations has been affirmatively raised. There is some question as to who actually filled in the old ditch and whether or not it was by agreement between the parties and the County Road Commission. A new ditch has been established at the site of the area in dispute by the County Road Commission, which does not adequately drain the land of the parties, but this is for more reasons than the closing of the old ditch, because there are other locations in the immediate area both lower and higher than the bottom of the old closed ditch. A view of the premises shows that both of the parties have taken the old road site into their respective farm lands and are benefiting, in fact, by the closing of the old ditch and the abandonment of the old road site. It is, therefore, the decision of the court that the plaintiff has not established a tort and injury and damages by the preponderance of the proofs which would entitle him to damages in Count I.
“The preponderance of the proofs shows that there was an old established fence, recognized for over forty-five years, between the lands of the parties in this dispute, and that the defendants, after surveying, established another fence west of the old recognized fence line along a line shown by the County Surveyor to be the true boundary line between the property of the parties. However, the old recognized fence line, even though not on the true boundary line, has, by use and adverse possession, become the legal boundary line between the premises of the parties, and the defendants unjustly took part of the plaintiffs’ land into their own when they moved the fence to the west of the old fence line. The plaintiffs have asked that the old fence be reestablished, but they have given no boundary line, by description, which the court can use to reestablish the old line, and the court feels that the acceptable thing to do is to allow the new fence line to stand as it is on the true line, by survey, and to compensate the plaintiffs in damages for the loss of the land taken from them. The plaintiffs also lost, in this illegal moving of the fence, some fence posts which were in the ground that are admittedly still in the possession of the defendants. The court finds that the plaintiffs have been damaged by this loss of land and fence posts in the amount of two hundred and fifty ($250.00) dollars.”
The only issue raised on appeal by plaintiffs is that the court erred in determining that:
“The plaintiffs have asked that the old fence be reestablished, but they have given no boundary line, by description, which the court can use to reestablish the old line, and the court feels that the acceptable thing to do is to allow the new fence line to stand as it is on the true line, by survey, and to compensate the plaintiffs in damages for the loss of the land taken from them.”
Plaintiff’s claim that Exhibit C, a survey of the area by the county surveyor and received as an ex hibit in the case, sufficiently defined the old line fence so that it could be reestablished. "We have examined Exhibit C and it does set forth that the old line fence was a certain number of feet at certain points East of the actual line as surveyed. The surveyed line was marked out on the exhibit but the old line fence was not. In going to the surveyor’s testimony, the following appears:
“Q. What was the prime purpose of the survey? Was it to determine the fence line, or was it to determine the Benedict Road area?
“A. The Benedict Road area.
“Q. This is what you were making the survey for then. Is that right, for this area up here ?
“A. That’s right.
“Q. And, in order to do that, where did you start your measuring?
“A. We started from the north end and worked to the south. We identified the north quarter corner from old records and found the stone referred to with a cross here, and some broken glass and iron around it.
“Q. I see. And, in order to do that then, I presume you surveyed both ends of a line to find the true line. Is that it ?
“A. Well, of course, our southern terminal, on the County line, was a south quarter corner.
“Q. I see.
“A. And, we found records in the Oceana County Road Department making it possible to find that corner and identifying it.
“Q. That would be the corner on Washington Road or in the vicinity of Washington Road. Is that correct?
“A. That is right.
“Q. Now, from this sketch, was there a fence existing along that line at the time?
“A. At about a quarter of a mile in, there was an old fence, and I went through on the northern end, as I recall, where there was new fence. There was some new fence put in.
“Q. Now, on the southern end of the fence that you refer to, was that to the east or the west of the survey line ?
“A. It started out to the east and at the north end it crossed the quarter line.
“Q. Where do you mean ‘at the north end’? Do you mean up where Benedict Road is ?
“A. Yes.
“Q. I see. Now, how far to the east of the survey line was this fence, if you can determine from your drawing?
“A. Well, let’s see. I don’t remember everything for five years, but the south end of north-south fence, three and eight-tenths east of line. That would be approximately a quarter mile to the north of Washington Road.
“Q. A quarter mile up from Washington Road, at that point the fence was what, three plus feet?
“A. Three point eight feet. (3.8')
“Q. Roughly four feet then, the fence line was four feet east of the survey line. Is that correct?
“A. That’s right.
“Q. I see. And, does that vary somewhat as it goes up ?
“A. Yes. It — well, let’s see,—
“Q. How about right at the end of Benedict Road? Is there a point there?
“A. There it is thirty-three hundredths (33/100) west of the line.
“Q. I see. And, then dropping down here a few feet, at this point, the next point down on your survey, does that show?
“A. Yes. There, at what would be fifteen hundred feet to the south, it would be twenty-five hundredths (25/100) east of line.
“Q. Two point two five? (2.25)
“A. No. I think that’s zero point two five. (0.25)
“Q. So, it runs from approximately four feet down here a quarter of a mile up to a point south of Benedict Road, where this old fence line was east of the survey line ?
“A. That is true.
“Q. I see. And, then right at Benedict Road, the fence moved over to the west side of the line. Is that correct?
“A. That is right.”
We can understand why the trial judge said there was insufficient evidence in the record to reestablish the old line fence. This was a determination of fact. Findings of fact shall not be set aside unless clearly erroneous. In the application of this principle, regard shall be given to the special opportunity of the trial court to judge the credibility of those witnesses who appeared before it. GCR 1963, 517.1, Dauer v. Zabel (1967), 9 Mich App 176.
Affirmed. No costs, appellee having failed to file a brief. | [
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Lesinski, C. J.
Defendant David Bunker and another man were convicted of first-degree murder, MCLA § 750.316 (Stat Ann 1954 Rev § 28.548), following a trial by jury. The codefendants were sentenced to life imprisonment. Defendant Bunker appeals as of right.
During the late afternoon on December 23, 1966, a red 1962 Chevrolet convertible with a white top pulled into the Clark Service Station on Van Dyke Avenue in the City of Utica. One of the station attendants, Alan Pringle, serviced the car. He put $2 worth of gasoline into the car, then went to the driver’s side for payment.
At this time the station manager came out of the station to see if he could give assistance. He observed the pump turned off at $2 worth of fuel and started back toward the building while Pringle went to collect from the driver. When the manager was approximately eight to ten feet from the car he heard a loud report. He turned and saw Pringle slumping to the pavement with money falling around him. The red convertible immediately left the station at a high rate of speed.
Shortly after the incident officers of the Sterling Township Police Department observed an automobile matching the description of the car seen at the service station and gave chase. The chase, at speeds up to 110 miles per hour, led through the City of Warren and several subdivisions. The car managed to avoid a police road block at one point, but finally went out of control after hitting another vehicle and came to a stop on the median strip of Mound Road.
Defendant, the driver of the red Chevrolet, and Robert Casper, the passenger, were immediately placed under arrest. Both were subsequently charged with first-degree murder, following the death of Alan Pringle.
At trial it was established by the prosecution through the testimony of a qualified ballistics expert that the gun which fired the fatal shot was the same gun which the police found along the chase route shortly after the chase. It was also established that the same gun had shot several spent bullets found in the basement of defendant’s home.
The bullets from defendant’s basement were found there during a police search conducted several days after the crime without a search warrant but allegedly with the consent of his parents. Prior to trial defendant made the proper motions to suppress the evidence found in his basement. Following the lower court’s denial, they were renewed at trial, at which time an extensive record was established out of the presence of the jury on the question of whether defendant’s parents consented to the warrantless search. The trial court held that consent had been given and that the search was, therefore, legal. Defendant’s motion was again denied.
Defendant’s first issue raised on appeal concerns the admissibility of the items located in his basement.
Initially we note that defendant has standing to attack the validity of the search of the basement of his home. Defendant, 18 years old at the time of the trial, lived at home with his parents. He contributed $20 per week toward his room and board and had his own bedroom. He had equal access, along with the rest of the family, to the basement. Defendant falls within the general rule stated in 78 ALR2d 246, § 12(a), p 267: “As a general proposition a member of a family who lives on family premises has been held to have standing to attack the legality of a search of such premises.” See, also, Jones v. United States (1960), 362 US 257 (80 S Ct 725; 4 L Ed 2d 697); Bumper v. North Carolina (1968), 391 US 543 (88 S Ct 1788; 20 L Ed 2d 797).
Defendant’s attack on the warrantless search is twofold. First, it is contended that defendant’s parents conld not legally consent to the search of their basement and the seizure of the items taken. Second, defendant argues that even if his parents could consent, they did not in fact do so. Defendant concludes that the evidence produced by the search is inadmissible under the exclusionary rules of Mapp v. Ohio (1961), 367 US 643 (81 S Ct 1684; 6 L Ed 2d 1081).
In the instant case Mr. and Mrs. Bunker were the sole owners of the house. Defendant did not have a financial interest. The basement was a common area for the family, all members having equal access. The items that were seized were a high chair and a storage box, both apparently owned by defendant’s parents, and several cartridge casings from the floor and a bullet, found in the storage box, which had penetrated the high chair and the outside of the storage box.
In Morris v. Commonwealth (1948), 306 Ky 349 (208 SW2d 58), the court stated, p 60:
“The next complaint concerning the evidence is that the cartridge case or empty shell shown to have been fired by the rifle tested was found in a search of appellant’s residence which was neither authorized by warrant nor by consent of appellant. Appellant lived in the home of his father. The officers who searched the dwelling asked the father, who was the head of the house, for permission to search the house; he consented to the search, and the .evidence obtained was found in the kitchen which was under the control of the father. We invariably have held that the head of a house, or the one in charge of the house at the time a search is made, may consent tó its search, and such consent will render competent the evidence thus obtained. It is not necessary for the defendant himself to give consent, unless he is the head of the house or in charge of the premises at the time the officers commence the search.”
More recently in United States v. Roberts (ED Ark, 1963), 223 F Supp 49; aff’d (CA 8, 1964), 332 F2d 892; cert denied 380 US 980 (85 S Ct 1344; 14 L Ed 2d 274), the police had received consent from defendant’s wife for a warrantless search. There the police were seeking a spent bullet lodged in the ceiling of defendant’s home in an effort to determine whether it came from the same gun which fired the fatal shot. After a review of the authority, the court concluded p 59:
“If a general rule must be extracted from the cases cited above and many others which might have been cited, it may be said with some degree of assurance that assuming a truly voluntary and understanding consent or authorization the same is sufficient to validate a search if given by a person who is in the sole possession or has sole control of the premises in question or who has an equal right with the defendant or suspect to the possession or control of the premises, provided that the search is limited to the general premises and does not involve entry into portions of the premises obviously reserved to the exclusive use of the defendant or suspect or the opening or breaking into drawers, bureaus, boxes, trunks, or like containers used for the storage of his property or effects.” (Emphasis supplied.)
Finally, it is significant that the United States Supreme Court did not question the right of a grandmother to consent to a search of her home for evidence incriminating her grandson who lived with her. Bumper v. State of North Carolina (1968), 391 US 543 (88 S Ct 1788; 20 L Ed 2d 797). Although the Court found a lack of consent on the part of the grandmother, it made reference to the possible effect of her consent, had it been voluntary, by way of footnote at 548:
“Mrs. Leath owned both the house and the rifle. The petitioner concedes that her voluntary consent to the search would have been binding upon him. Conversely, there can be no question of the petitioner’s standing to challenge the lawfulness of the search. He was the ‘one against whom the search was directed,’ Jones v. United States, 362 US 257, 261 (80 S Ct 725, 731; 4 L Ed 2d 697), and the house searched was his home. The rifle was used by all members of the household and was found in the common part of the house.”
We conclude, therefore, that where the area to be searched is open to the common access of all members of the family, that the homeowning parents have the right to consent to a search for items which may incriminate one of their children who is living at home.
The issue is thus reduced to the question of whether Mr. and Mrs. Bunker consented to the search.
Two points concerning consent to a search are firmly established in the law. First, the consent must have been specific and unequivocal, free and voluntary, and knowing and intelligent. Second, the burden is on the prosecutor to establish that such consent was given by clear and convincing evidence.
In People v. Kaigler (1962), 368 Mich 281, the Court stated p 294:
“[S]ueh waiver or consent must be proved by clear and positive testimony and there must he no duress or coercion, actual or implied, and the prosecutor must show a consent that is unequivocal and specific, freely and intelligently given.”
Again, in Bumper v. North Carolina (1968), 391 US 543 (88 S Ct 1788; 20 L Ed 2d 797), and People v. Smith (1969), 19 Mich App 359, it was held that the prosecution has the burden of proving that consent was freely and voluntarily given, when it seeks to rely upon consent to justify a warrantless search. In People v. Smith, supra, p 369, we noted “the familiar principle that waiver is the intentional relinquishment or abandonment of a known right.” See, also, People v. Shaw (1968), 9 Mich App 558.
The standard of review on appeal is whether the trial court was clearly erroneous in its conclusions. People v. Hummel (1969) 19 Mich App 266; GCR 1963, 517.1, 785.1. As this Court noted in Hummel p 270:
“Thus, this Court will give deference to trial courts’ findings, especially where the demeanor of the witnesses is important, as where credibility is a major factor. However, while the trial courts’ findings will guide us, we are not bound by them.”
By way of footnote, p 270 we stated:
“Under the ‘clearly erroneous’ standard * * * a trial judge can be reversed even though there was sufficient evidence to lead a reasonable man to the same result, if we are of ‘the definite and firm conviction that a mistake has been committed.’ ”
Keeping in mind these various standards, from our review! of. the record made at the evidentiary hearing, we are unable to say that the trial court was clearly erroneous. The record reveals that the investigating officer, Patrolman Wilk, who was not in police uniform, went to defendant’s home several days after his arrest. The visit was made during the day and both Mr. and Mrs. Bunker were home as defendant’s father worked a later shift.
The officer talked with the Bunkers for nearly 45 minutes both asking and answering questions about defendant, the case and news reports which the Bunkers had heard on the television covering the shooting. During the course of the conversation the fact arose that defendant had been doing some “target practicing” in the basement several weeks prior to the crime. Apparently, however, no search was made at this time.
The next day pursuant to an appointment with defendant’s parents, Patrolman Wilk and another officer made a brief search of the basement in the presence of the Bunkers, after receiving their permission. The officers then received Mr. Bunker’s written permission to take the items in question; however, no attempt was made to remove them.
Bather, the Bunkers were requested to first meet with the prosecuting attorney. This was done and the transcript of the meeting reveals numerous statements by the Bunkers that they had no objections to either a search or seizure.
Only after these numerous precautions were taken did the police seize the high chair and storage box along with the fired bullets and empty shell casings.
Moreover, there are the repeated admissions throughout the evidentiary hearing at trial by both parties that at the time of the search they had no objections to the search or of the taking of the items. Finally, Mrs. Bunker actually helped in the search ■which produced the spent bullet in the storage box and she also gave the police two additional items unrelated to the search which they had not known existed and which they were in fact surprised to learn of.
In United States v. Roberts, supra, at p 59, the Court stated:
“In cases of this kind courts are not concerned ultimately with whether the person giving the consent, whether the wife, employer, landlord, or a person standing in some other relation to the person at whom the search is being directed, was the agent of such person or had authority from him, but rather with the question of whether the officers making the search and effecting the seizure acted fairly and reasonably on the one hand, or unfairly, oppressively, or unreasonably on the other hand.” (Emphasis supplied.)
Here the record indicates that the police acted in a courteous and reasonable manner pursuant to multiple consents, both written and oral, made both to them and the prosecuting attorney. The search was neither a general search of the entire house nor rigorous.
The defendant emphasizes that the police made no effort to obtain a search warrant despite the existence of ample probable cause. In cases too numerous to mention it has been recognized that courts favor the use of warrants. We would, thus, normally agree that the failure to obtain a warrant where one was easily obtainable, weighs against an attempt by the prosecutor to characterize a warrant-less search as reasonable.
In the instant case, however, there is a serious question as to whether a warrant was available to the police. The statutes governing the issuance of search warrants in December, 1966, when the search was conducted, did not explicitly provide for warrants to search for- evidence of a crime. The record on appeal includes an affidavit by an assistant prosecuting attorney stating that in the instant case the police sought a search warrant, but were advised by the affiant that one could not be issued for the search of evidence and that a search could only be conducted with the consent of those persons lawfully in possession of the premises. We note the good-faith attempt by the police to obtain a search warrant as a further indication of their efforts to abide by the law.
We conclude that the search and seizure were lawful and that the evidence produced was properly admitted at trial.
Several witnesses were produced at trial who testified that approximately one or two months prior to the crime, they saw defendant in the possession of a gun similar to the murder weapon and were present in defendant’s basement when the spent bullets, later found by the police, were fired. The testimony was admitted over objection below.
On appeal defendant attacks the trial court’s admission of the evidence on the grounds that none of the witnesses was able to positively identify the gun, that “it is testimony dealing with a time period which is too remote” and that it was irrelevant and immaterial.
The witnesses testified to several similarities» between the murder weapon and the gun séen in' »de-'fendant’s possession. Both were pistols of the same design with wooden handles and chbome plátSd bar-" reís. The inability to make ■&. positive identification' affected the weight and not the admissibility' of'the evidence. -See'generally: 31-'Am- Jur,;2dv'-Expeft and Opinion’ Evidence, § 126, p 668. ' ■
Questions of relévancev'maitófiálity -'aild remoteness are generally left"to! the sound- discretion - of-the trial court. Qualified expert testimony was adduced at trial showing'that--the' spent bullet found in the basement "-and the-fatal shot wéré fired by the same gun. The trial court was, thus, clearly correct in admitting testimony which tended to link defendant to the murder weapon over objections of irrelevance and immateriality.
Defendant testified in 'his:'own behalf’at trial. On cross-examination • the' prosecutor in ' attempting to attack defendant’s "credibility, asked r
“Q: Did you in the company of any of those names I mentioned attempt to .break out of‘the'Macomb County Jail on or about the 12th day !of March, 1967?
“A: I was in the company of -them, yes sir.”
The question was. permitted over defendant’s‘objection. On redirect examination defendant denied taking an active part in attempting to saw through the cell bars. The prosecutor introduced a rébuttal witness who testified that he saw defendant help in the sawing.
On appeal defendant argues that evidence about the attempted jail break was erroneously introduced.
The evidence of' defendant’s, attempted escape was properly placed before'the jury. Michigan authority is uniform that such evidence, while not' admissible as substantive .proof of guilt, can be introduced to show defendant’s state of' mind. Defendant’s argument that the prior cases are distinguishable, on the grounds that they involve successful escapes as opposed to the attempted, but unsuccessful, escape in the instant case, is without merit. It is the effort to escape custody which, is relevant,, not the fortuitous result of success or failure.
Defendant further argues on appeal that the trial court’s instruction to the jury on the effect to be given his attempted jail break was erroneous. He also attacks the court’s instruction regarding presumptions arising from the use of a deadly weapon.
Although given the 'specific opportunity by the trial court, this objection to the instructions was not raised by defendant below. Defendant’s failure of timely objection waives any possible right he might have had to object now to the instructions. People v. Allar (1969), 19 Mich App 675; People v. Mallory (1966), 2 Mich App 359; GCR 1963, 516.2.
Finally, defendant contends that the evidence adduced at trial was insufficient for a jury to find him guilty of first-degree murder.
Our review of the record satisfies us that sufficient evidence was produced which, if believed, justified the jury’s belief of the following facts. Defendant drove a car which he had stolen that afternoon into the gasoline station although its tank was already .three-quarters full. The decedent, Alan Pringle, a young man with a pronounced -limp who was required to carry a moderate sum of cash on his person as part of his employment, serviced the car and went to the driver for payment. The station manager, who did not see or hear any indication of an argument between defendant and decedent, saw money falling from Pringle’s hand immediately after hearing the gunshot. Defendant then fled and made every effort to escape, including avoidance of a police roadblock and a 110-mile-an-kour chase over a considerable distance. Prom these facts the jury could reasonably have inferred an attempted armed robbery which ended in Pringle’s death.
Defendant testified that the shooting accidentally occurred when he and Pringle got into an argument and defendant tried to defend himself from decedent’s physical assaults. The jury was presented with an issue of fact. The evidence justified its resolution against defendant.
Affirmed.
All concurred.
See, also, People v. Smith (1969), 19 Mich App 359, where this Court stated beginning p 367:
“In reviewing a trial judge’s ruling oil an issue involving asserted deprivation of a constitutional right, an appellate court is obliged itself to review the evidence and to make its determination guided but not controlled by the trial judge’s factual determination,”
Mention of this fact is- not meant to imply that had there been an atmosphere of coercion and duress, helping in the search would have meant that consent was given. Cf. People v. Smith (fn 2).
CL 1948, §§ 776.1, 776.2 (Stat Ann 1954 Rev §§ 28.1259, 28-.1260); MCLA §§ 28.433, 750.238 (Stat Ann 1962 Rev §§ 28.99, 28.435).
This was in accordance with the “mere evidence” rule followed in many jurisdictions. See generally: 47 Am Jur, Search and Seizures, § 54, p 534. Cf. MCLA § 780.652 (Stat Ann 1969 Cum Supp § 28.1259[2]), effective March 10, 1967, whieh provides: “A warrant may he issued to search for and seize any property or other thing whieh is either: * * * (d) Evidence of a crime or criminal con-duet on the part of any person.”
See People v. Charles Williams (1969), 15 Mich App 683; 29 Am Jur 2d, Evidence, § 251, p 299.
See: People v. Cleveland (1895), 107 Mich 367; People v. Haxer (1906), 144 Mich 575; People v. Cipriano (1927), 238 Mich 332; 1 Gillespie, Michigan Criminal Law and Procedure (2d ed), § 420, p 502; 2 Wigmore, Evidence (3d ed), § 276; 29 Am Jur 2d, Evidence, § 285, p 332. See, also, People v. Jones (1965), 1 Mich App 633.
For the well settled standard of review of jury verdiets, see People v. Eagger (1966), 4 Mich App 449; People v. Arither Thomas (1967), 7 Mich App 103; 2 Gillespie (2d ed), Michigan Criminal Law and Procedure, § 807, p 1054. | [
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T. M. Burns, J.
Defendant was arrested on April 29, 1967 and arraigned on May 1, 1967 on a warrant charging a violation of MCLA § 750.335a (Stat Ann 1954 Rev § 28.567 [1]), indecent exposure. He pled not guilty and was released on $1,000 bond. A preliminary examination was set for May 11, 1967. On that date, the defendant was in custody on a separate assault and battery charge. When defendant did not appear for examination, his bond was forfeited and a bench warrant issued. Although the warrant was cancelled when the trial court learned that defendant was in custody, the original bond remained forfeited, and a new bond was set at $8,000. Defendant was unable to furnish bond and remained in custody.
The preliminary examination was re-set for May 22, 1967. On May 16, 1967, the defendant requested that a counsel be appointed to assist him. The examining judge denied this request on the basis that defendant’s affidavit of indigency stated that he had equity in real estate of approximately $17,-500 and weekly earnings of $164.
Although the defendant had lost his joh because' he was in custody, and had no savings, the court said, on May 16, 1967,'that in .cooperation with his wife defendant could get a second mortgage oh his' house so that he could retain counsel; and, therefore, he was not an indigent.
On May 22, 1967, defendant was bound over'for trial without examination. On June 8, 1967, defendant appeared, asserting that he could not afford an attorney, and that he, therefore would defend the action himself. The $8,000 bond was continued and defendant was remanded to custody.
Between June 8 and his next appearance in court-on July 10, 1967, defendant’s wife was' granted a' default judgment of divorce, and as part of the property settlement she was given the house and all the furniture “free and clear” of any claim of the' defendant.
On July 5, 1967, the prosecuting attorney filed á” petition seeking to have defendant examined and. committed as a criminal sexual psychopath under PA 1939,. No 165. This petition was heard on July 10, 1967, at which time the prosecutor brought the' question of appointment of counsel for defendant, to the court’s attention. The court, after it had granted the prosecutor’s petition for examination, and despite the fact that default divorce order had been entered on June 19, 1967 in the same ,coun;ty said, “if it appears from the reports of the psychia-trists that he is going to need counsel, he can probably make some arrangements with counsel based upon Ms share of the equity in the house.”
A -hearing was held on October 24, 1967, at which time-the psychiatrists testified. No other testimony was offered. The defendant made no attempt to cross-examine.
At the close of the psychiatric testimony, the court indicated that he was ready to make a decision immediately, without hearing from the defendant at all; ’ However, the prosecutor requested that he “give the defendant an opportunity to say something.” When the defendant indicated that he had nothing to say for the record, the judge immediately committed him to the custody of the State Mental Health Commission as a criminal sexual psychopath.
Defendant filed an application for delayed appeal and a motion for appointment of appellate counsel. The application for delayed appeal was granted, and in November of 1968, a testimonial record was ordered by this Court on the question of indigency. The .committing judge met with the prosecutor on February 18, 1969, the defendant not being present or represented, and made a “testimonial record” in support of its conclusion that the defendant was not indigent.
This Court, based upon the circuit court’s determination that the defendant was not an indigent, denied defendant’s motion for appointment of appellate counsel on March 20, 1969.
The cause was submitted, to the Court on briefs for determination on the merits on December 4, 1969, with the defendant continuing in propria persona.
.“The, assistance of counsel to an indigent defendant in a criminal trial is a fundamental right essential to a fair trial and the denial of such assistance violates the Fourteenth Amendment.” People v. Stearns (1968), 380 Mich 704, 713. So also here where the result of a commitment as a sexual psychopath can mean that defendant may remain in custody for the rest of his life.
After a full and careful review of the record on appeal, we find that the trial court’s finding that defendant was not an indigent is a clear abuse of discretion. The “testimonial record” prepared by the trial court in support of its determination produced nothing.
■The defendant, who dropped out of school at age 16 in the 9th grade, prepared the affidavit of indigency without assistance and apparently without knowing the meaning of the word “equity”. The figure which he put in as his equity was in fact the approximate market value of the house. The actual equity in the house was much closer to the $1,800 found to be his equity by the committing judge. The “testiriionial record” indicates that' the court was aware' that defendant had made a mistake when he filled out the affidavit. Yet, in July of 1967, and again in February of 1969, the court, which must have by then at least had the default divorce order before it as people’s exhibit C, made reference to defendant’s nonexistent equity in the house which had been given to his ex-wife.
Further, since defendant was in custody from, at least, May 11, 1967 on, he was unable to earn money with which to retain an attorney. Certainly if defendant had had an attorney, he would have been counseled to put up a more vigorous defense to the commitment proceedings. For if he had been tried and convicted on the original charge of indecent exposure, the maximum penalty would have been only one year. MCLA § 750.335a (Stat Ann 1954 Rev § 28.567 [1]).
Since the court below erred in denying the defendant the assistance of appointed counsel, we reverse and remand for rehearing. On remand, the defendant shall be given the assistance of a court-appointed counsel.
Further, we find that the forfeiture of the original $1,000 and the increasing of bond to $8,000 was without justification. The crime with which defendant was charged was a misdemeanor, having a maximum penalty of one year. Although defendant did fail to appear on the date originally set for his preliminary examination, his nonappearance was adequately explained to the court, since he was in custody, and could not legitimately be used as a reason for increasing bail.
Therefore, we further order that the original bail of $1,000 be reinstated pending rehearing.
Reversed and remanded.
All concurred.
In Ms affidavit of indigency, dated May 12, 1967, the defendant indicated that he had no present employer. Consequently, Ms stated weekly earnings were not present earnings, but what he' had been earning before he was in custody. Further, the amounts stated - as being equity and amount owed are clearly in error. Tet, even without these obvious mistakes and misconceptions, the defendant, to the best of Ms limited ability, made it quite dear that the re'ai estate in question was not freely alienable by him as it was subject to a pending divorce decree.
' February 18, 1969 11:45 am
Mount Clemens, Michigan
"Mr. OsinsM: May it please the court, this is in the matter of the People of the State of Michigan versus James Edward Griffin, Circuit-Court File Number C67-539, Court of Appeals Number 5504.
“On November 13, 1968, the Michigan Court of Appeals entered an order requesting that the trial court make a testimonial reeord supporting the trial court’s conclusion of solvency as to the respondent James Edward Griffin. And for the record may I just point out a few preliminary points of information: This defendant was arraigned on information in this honorable court on June 8, 1967 on the charge of indecent exposure, and this is contrary to MCEA § 750.335a (Stat. Ann 1954 Eev § 28.567[1]). Now, prior to the arraignment on information, the defendant had requested the appointment of counsel, and he supplied the court with the affidavit of financial condition, and ■ his request for counsel, and this matter was considered by the Honorable Walter P. Cynar on May 16, 1967 which is obviously the date before the arraignment on information. There is no record made by Judge Cynar as to the denial of appointed counsel at that time. The court disposition sheet- merely shows that there was a lack of showing on indigence based on the affidavit of financial condition. At the time of arraignment on information before this honorable court on June 8, 1967 the -defendant made request again for appointed counsel. And this eourt, the Honorable Edward J. Gallagher considered the request and proceeded to examine the affidavit of financial condition submitted by the defendant. The affidavit of financial condition indicates that Mr. Griffin had a realty equity of approximately $18,000 or spfeeifieally $17,590. The affidavit likewise listed the fact that Mr. Griffin had weekly earnings of $164 at least up to the time of incarceration.
“Now, your Honor, as I read the transcript at that arraignment it appears to me that the eourt had denied the request based upon the earnings and based upon his eorreetly, correction, based upon his realty equity. Now, at the time this honorable eourt considered this request for appointment of counsel at the time of arraignment, on information, this court was talking in terms of $1,800 equity in the house as opposed to the $18,000 equity listed by the defendant. I submit to the court that this factor worked for the benefit, that is of the defendant, because the court was considering his equity as $1,800 as opposed to $18,000.
“Now, the Court of Appeals has requested that a testimonial record be made to support the trial court’s conclusion of solvency, and I trust that the preliminary remarks that I have just made will assist the court in remembering the faets of the case, and T assume also that the court has read the file, the circuit court file, and the transcript contained therein.
“The Court: Well, there is no doubt in my mind but what Judge Cynar was right in refusing to grant counsel on the basis of indigency based upon the household equity as represented to him,, plus the earning capacity as represented to him. By the time the file got to me the earning, or the household equity had shrunk considerably. Obviously the defendant had made a mistake. But nevertheless, the earning capacity up to the time of arrest had been considerable.
“There appears to be no doubt in my mind but what the defendant, in cooperation with his wife could have obtained a second mortgage upon the premises involved sufficient to pay' attorney'- fees fok a high court misdemeanor had he wished to do so. Further more, there is no doubt in my mind but what the defendant could have obtained a loan from a finance company sufficient to pay attorney -fees', for. a high eourt misdemeanor if he wished to do so. I can see no point in saddling the county with an obvious burden in such a case as this. The defendant, while not immediately equipped to pay -was- equipped to pay to obtain the money to pay, and certainly should have done so. It was — he was on bond, wasn’t he? . -
“Mr. OsinsM: Originally when lie was arrested an arraignment on warrant bond was set in the amount of $1,000 and he posted it the very same day.
“The Court: That’s right.
“Mr. OsinsM: And he was released pending preliminary examination,
“The Covlrt: And he was at liberty, and was certainly free to go about obtaining money to obtain counsel. It appears to me to be ridiculous to assume that the eounty should pay for counsel in a situation like this where there’s no actual indigency shown.” '
Although PA 1939, No 165 under which defendant was committed was repealed by PA 1968, No 143, the Supreme Court has, by its decision in People v. Shields (1969), 382 Mich 593, 594, ordered that hearings pursuant to PA 1939, No 165 for commitment as criminal sexual psychopaths must still be held. | [
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Ryan, J.
This workers’ compensation case presents the issue of when the obligation of the Self-Insurers’ Security Fund (SISF) to pay benefits under MCL 418.537; MSA 17.237(537) begins. In this case, we find the obligation to have begun on July 29, 1977, the date upon which a receiver was appointed for the defendant corporation.
Plaintiff’s decedent died on November 21, 1971, as a result of a work-related injury. In 1973, plaintiff petitioned for death benefits which were awarded in 1975. That award was appealed, but because Detroit Harbor Terminals was unable to pay 70% of the benefits while appeal was pending, as required by statute, the plaintiff moved for dismissal. The Workers’ Compensation Appeal Board granted plaintiff’s motion on July 15, 1977, and the final order was reduced to judgment in the Wayne Circuit Court.
On July 29, 1977, a receiver was appointed for defendant Detroit Harbor Terminals. For all periods subsequent to that date, defendant SISF has made the weekly payments as ordered in the original decision.
On October 25, 1977, the plaintiff petitioned for a determination of rights. She asked that the SISF be required to make benefit payments for the period beginning on the date of her husband’s death, or on the date of the initial filing of the petition for benefits, September 20, 1973. In a decision mailed February 12, 1979, the hearing referee agreed that the SISF was obligated to make benefit payments for the period beginning on the date of the decedent’s death.
The WCAB reversed this decision, holding that the SISF was not responsible for any payments prior to the date that receivership was established for defendant Detroit Harbor Terminals. The Court of Appeals denied leave to appeal on July 14, 1980, and plaintiff seeks relief from this Court.
Section 537(1) of the Worker’s Disability Compensation Act defines the class of employees covered by the SISF. McQueen v Great Markwestern Packing Co, 402 Mich 321, 327; 262 NW2d 820 (1978). Qualification is based upon employer insolvency:
"The trustees may authorize payments from the self-insurers’ security fund upon request to the fund’s administrator by a disabled employee * * * who is receiving or is entitled to receive worker’s compensation benefits from a private self-insured employer who becomes insolvent after November 16, 1971, and is unable to continue the payments." MCL 418.537(1); MSA 17.237(537)(1). (Emphasis added.) _
In order to understand what is meant by the term "insolvent” in § 537, this section must be read in conjunction with MCL 418.502; MSA 17.237(502), which defines an "insolvent private self-insured employer”.
"For the purposes of this act, an insolvent private self-insured employer means either an employer who files for relief under the bankruptcy act, or an employer against whom bankruptcy proceedings are filed, or an employer for whom a receiver is appointed in a court of this state.” MCL 418.502; MSA 17.237(502). (Emphasis added.)
In this case, the employer, Detroit Harbor Terminals, was placed in receivership on July 29, 1977. Because that was the day on which the employer became insolvent under the statute, the SISF was not required to pay benefits to the plaintiff for any disability prior to that day. The plaintiff failed to qualify under the statute’s classification scheme until there was an insolvency as defined by the statute.
Adherence to the statutory definition of insolvency assures that SISF funds are used to pay benefits only when it is determined with certainty that the employer is unable to continue the payments. It sets forth a clear guideline so that the hearing referee and the WCAB can easily ascertain the exact date of insolvency and thereby determine the party’s eligibility for SISF benefits. It avoids creating an incentive for any financially troubled self-insured employer to improve its cash flow by refusing to pay compensation benefits and advising injured employees to seek recourse from the SISF. Most importantly, this approach conforms to the clearly expressed legislative intent that the SISF may not pay benefits until the private self-insured employer "has become insolvent”. MCL 418.537(2); MSA 17.237(537)(2).
The plaintiff contends that the statute, as interpreted and applied by the WCAB, denies her equal protection under both the state and federal constitutions. When the Legislature set up the SISF, it necessarily engaged in a balancing process. The goals to be achieved by the creation of this fund were carefully considered and weighed against the cost of achieving those goals. The line separating those eligible for SISF benefits from those ineligible had to be drawn somewhere. Unless the resultant classification is arbitrary, unreasonable, or lacks a rational basis, this Court must give deference to the legislative decision. Miller v Detroit Savings Bank, 289 Mich 494, 497; 286 NW 803 (1939).
The classification here is a reasonable one. As noted above, the statute rationally promotes the goals of preserving the fiscal integrity of the SISF and providing a clear guideline for determining eligibility. We believe that the challenged statute is sufficiently related to these legitimate legislative purposes to pass constitutional muster. See Borden's Farm Products Co, Inc v Baldwin, 293 US 194; 55 S Ct 187; 79 L Ed 281 (1934); People v Poucher, 398 Mich 316; 247 NW2d 798 (1976).
The statute, as it is written, may not afford the plaintiff what some would regard as adequate relief, or may render that relief more difficult to obtain. In some cases, those claimants entitled to benefits may be forced to file bankruptcy proceedings against the employer and, just as any other general creditor, may be forced to settle with the receiver for a part of the amount owed. While we may be sympathetic to the plaintiffs predicament, we are reminded that " '[i]t is not within the province of this Court to read [into a statute] a mandate that the legislature has not seen fit to incorporate. Our duty is to apply the law as we find it.’ ” Joslin v Campbell, Wyant & Cannon Foundry Co, 359 Mich 420, 429; 102 NW2d 584 (1960), quoting Jones v Grand Ledge Public Schools, 349 Mich 1, 11; 84 NW2d 327 (1957); Cadeau v Boys' Vocational School, 359 Mich 598, 609; 103 NW2d 443 (1960).
The Court should not, by "heavy-handed judicial construction”, do violence to the well-settled meaning of "insolvency” as defined by the Legislature. See Ecorse Screw Machine Products Co v Corporation & Securities Comm, 378 Mich 415, 417-418; 145 NW2d 46 (1966).
Accordingly, in lieu of granting leave to appeal, we affirm the judgments of the WCAB and the Court of Appeals. GCR 1963, 853.2(4).
Kavanagh, Levin, and Coleman, JJ., concurred with Ryan, J.
Fitzgerald, C.J., and Williams, J.
This workers’ compensation case presents the issue of when the obligation of the Self-Insurers’ Security Fund (SISF) to pay benefits under MCL 418.537; MSA 17.237(537) begins. In this case, we find the obligation to have begun on September 20, 1973, the date upon which the plaintiff petitioned for benefits.
I
Plaintiff’s decedent died on November 21, 1971; the petition for benefits was filed by plaintiff on September 20, 1973. A judgment in favor of the plaintiff became final in 1977. On July 29, 1977, a receiver was appointed for the employer of plaintiff’s decedent. From that date forward, the SISF has made weekly payments.
On October 25, 1977, the plaintiff petitioned for a determination of rights. She asked that the SISF be required "to pay benefits from date of death and/or date of the initial filing of the petition for hearing”. The hearing referee agreed in 1979 that the SISF’s obligation to the plaintiff extended back to the date of death. The Workers’ Compensation Appeal Board reversed the referee’s decision, though, holding that the SISF need not pay benefits for the period prior to the establishment of the receivership. The Court of Appeals denied leave to appeal.
II
The WCAB held, and the SISF contends, that the insolvency requirement of the Worker’s Disability Compensation Act is essentially jurisdictional — no payments may be ordered for benefits that may thereafter be found due for the period prior to insolvency as defined in the act.
"[A]n insolvent private self-insured employer means either an employer who files for relief under the bankruptcy act or an employer against whom bankruptcy proceedings are filed or an employer for whom a receiver is appointed in a court of this state.” MCL 418.502; MSA 17.237(502).
Section 537(1) of the Worker’s Disability Compensation Act authorizes SISF payments to one entitled to receive "benefits from a private self-insured employer who becomes insolvent after November 16, 1971, and is unable to continue the payments”. MCL 418.537(1); MSA 17.237(537X1).
Section 537(2) of the act sets forth the method for requesting payment from the SISF:
"If an employee becomes disabled or dies because of a compensable injury or disease while in the employ of a private self-insured employer who has become insolvent and who is unable to make compensation payments, the employee or a dependent of the employee as defined in section 331 may seek payment from the self-insurers’ security fund either by request through the fund’s administrator or by filing a petition for hearing with the bureau.”
Section 537(3) does not permit payments "for any period of disability that is before the date of the request to the administrator or the date of the petition for hearing before the bureau”.
The statute does not clearly disallow payments covering a period prior to insolvency, as long as a petition is filed or a request is made. In light of the purposes of the act, payments will therefore be required under the terms of the statute from "the date of the request to the administrator or the date of the petition for hearing” if the request or petition precedes the actions creating "insolvency”.
In the instant case the SISF had notice of the claim for SISF benefits more than six months prior to statutory insolvency. In addition, the Bureau of Workers’ Disability Compensation had earlier posted a memorandum on October 25, 1976, which mistakenly informed attorneys that the "employer is in bankruptcy and their self-insurance liabilities may be secured by the Self Insured Insolvency Fund [sic]”.
Delays in instituting insolvency proceedings, particularly given the instant facts, should not deprive a claimant of benefits. The act is designed to protect employees from the financial consequences when self-insured employers are unable to make required payments.
In a different context, this Court has recognized the problems for claimants who are relegated to insolvency proceedings in order to collect benefits. In McQueen v Great Markwestern Packing Co, 402 Mich 321, 340; 262 NW2d 820 (1978), we stated:
"The WCAB shall request the Workers’ Compensation Commission to designate a person to act as guardian for all of defendant employer’s injured employees with workers’ compensation claims affected by its insolvency. This guardian shall supervise the fund set up * * * and shall pursue all such workers’ claims in the bankruptcy court. There is no specific provision in the worker’s compensation act or 1971 PA 149 [SISF act], but equity and the remedial intention of the Legislature certainly warrants this action. I would mandate it inasmuch as the individual injured workers can hardly be required to make themselves whole when the circumstances are the result of the commission’s failure to exercise perfect judgment in the grant of the self-insurance privilege.”
Furthermore, any gap in benefits should be borne by the fund and not by the disabled worker. That is the fundamental purpose of the security fund provisions of the act.
Accordingly, in lieu of granting leave to appeal, we would reverse the judgments of the Court of Appeals and the Workers’ Compensation Appeal Board. GCR 1963, 853.2(4). The case should be remanded to the Workers’ Compensation Appeal Board for further proceedings not inconsistent with this opinion.
The late Justice Blair Moody, Jr., took no part in the decision of this case._
Subsections (2) and (3) detail the manner in which qualified employees may file their claims against the SISF. McQueen, supra, pp 327-328; Lee v Benton Harbor Malleable Industries, 92 Mich App 590; 285 NW2d 298 (1979). These sections require that the employee make a request through the fund’s administrator or file a petition for a hearing with the bureau. They also provide that no payments may be made for any period prior to the request. MCL 418.537, subds (2), (3); MSA 17.237(537), subds (2), (3). Petitioner first notified the SISF that she might be entitled to benefits from them on November 19, 1976. There may be some question whether petitioner is entitled to any benefits prior to that date. See Lee v Benton Harbor Malleable Industries, supra. However, because defendant-appellee failed to raise the issue, we do not address this question here.
This approach is consistent with past construction of the statute in question by the Court of Appeals. In Cesnulis v Monarch Products Co, 87 Mich App 290, 292; 274 NW2d 42 (1978), the Court defined "self-insurer” in MCL 418.537(1); MSA 17.237(537)(1), by referring to another section of the same statute, MCL 418.601; MSA 17.237(601), which provided in part that ”[w]henever used in this act: * * * (b) 'self-insurer’ means an employer authorized to carry its own risk”. (Emphasis added.) As this Court unanimously stated in Joslin v Campbell, Wyant & Cannon Foundry Co, 359 Mich 420, 426; 102 NW2d 584 (1960):
"[T]his Court must construe a legislative enactment in its entirety. As this Court has previously stated, one provision may not be construed in such manner as to render another of no effect if such result can be avoided. Brady v City of Detroit, 353 Mich 243, 248 [91 NW2d 257 (1958)]. Earlier, this Court said:
" 'The entire act must be read, and the interpretation to be given to a particular word in one section arrived at after due consideration of every other section so as to produce, if possible, a harmonious and consistent enactment as a whole.’ City of Grand Rapids v Crocker, 219 Mich 178, 182, 183 [189 NW 221 (1922)].”
MCL 418.101 et seq.; MSA 17.237(101) et seq.
The SISF’s obligation to pay shall not, however, be construed to cause a double recovery. Where the self-insured employer has made a portion of the payments for which it is liable, the SISF shall receive a setoff in that amount.
If required payment did not commence until "insolvency”, such a scheme might well work to the detriment of employers who wish to avoid bankruptcy or receivership petitions. If we were to approve a statutory construction that identified § 502 "insolvency” as the earliest date to secure benefits from the security fund, it would give lawyers for workers’ compensation claimants a motive to immediately file bankruptcy petitions upon any failure to make required payments. | [
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V. J. Brennan, J.
Wood lake is a small lake of some 74 acres, situated off U.S. highway 131 in Montcalm county. It lacks inlets and outlets, and is completely surrounded by the plaintiffs’ lands— the McMullans’ to the north, the Pigorshes’ to the east, south and west. On the north side of the lake, an unplatted and undedicated, dirt road, 12 to 14 feet wide, runs approximately 1500 feet from the highway on the east to a deadend behind the MeMullan house on the west, coming as close as 14 feet to the water, depending on the water’s fluctuation. At the closest point between the lake and this road, which is commonly called McMullan road, there is a cleaning or access strip 500 feet long. Through the years, and without seeking or gaining the express permission of the McMullans, friends and neighbors have traversed the road, parked their automobiles on the shoulder and strip, and have fished, boated and swum in the lake. In 1953, strangers began using the lake, and as their number increased, more and more boats were to be seen on the water, and more and more automobiles were found parked on the McMullans’ land. Litter and debris were scattered about while derelict boats were left to rot in and around the lake. In question here is the plaintiffs’ right to exclude the public from the waters of Wood lake.
In early 1966, the McMullans erected a wire fence along a line 25 feet south of the road’s edge, thereby blocking access to the lake, but portions of the fence were promptly cut and removed by certain officials of Pierson township. Faced with the continuing-presence of the public, the McMullans and Pigorshes commenced the present action to enjoin both the officials who had cut the fence and any unknown persons from trespassing on their lands and using Wood lake. In answering the claim of trespass, the individual defendants alleged that McMullan road touches the lake, and that it is a public roadway, having- been traversed by the public for more than 10 years. While the suit was pending, the McMullans spread fill-dirt partly in the water and partly on the land along- a line parallel to the fence. Upon learning- of the fill, the Attorney General moved to intervene as a party defendant on the relation of the Department of Conservation, claiming that the fill was placed in violation of the permit requirement of PA 1965, No 291, and adopting by reference the individual defendants’ answer to the plaintiffs’ complaint. The individual defendants subsequently amended their answer to include, under the heading “affirmative defense,” the claim of a prescriptive right to walk over and across the plaintiffs’ lands to gain access to the lake. The right was said to arise from the public’s use of the land for more than 10 years. The Attorney General did not refer to the amended answer in the pleadings he filed after the court granted his motion to intervene.
At trial the court held that McMullan road was private by the individual defendants’ own admission, since they had failed to answer written interrogatories wherein the plaintiffs asserted that the road was private. The individual defendants were permitted, however, to make a separate record showing the nature and extent of the public’s use of the lake and land. The Attorney General did not offer any proofs concerning the road and access strip, and the court viewed his position as being procedurally limited to the alleged violation of PA 291. After thoroughly and thoughtfully examining the applicable case law, the court concluded that Wood lake is neither “navigable” within the meaning of PA 291 nor “navigable” for purposes of public recreation, dismissed the Attorney General’s claim, and granted the injunction sought by the plaintiffs.
Only the Attorney General appeals, contending that the trial court was in error, that the lake is subject to the provisions of PA 291, and that it is open to the public for recreation. Lawful access to the lake is gained, he alleges, either by McMullan road alone, assuming the road is a public highway by user with a statutory width of 66 feet, or, if the road is not of tbe statutory width and therefore does not touch the lake as a matter of law, by Mc-Mullan road together with a prescriptive easement, in favor of the public, over the access strip. The plaintiffs contend, on the other hand, that the Attorney General, assuming he has standing at all, may not assert the claims of public highway by user and prescriptive easement, since he did not expressly assert them as affirmative defenses below. Whatever the merits of this procedural question, this Court need not decide it, for, as we shall see later, even if the public may lawfully gain access over the road and strip, the public may not use Wood lake for recreation.
At one time, logs belonging to the plaintiffs’ predecessors in title were floated across the lake to a timber mill located on riparian land. The lake today is capable of floating logs. Because of this capacity, the Attorney General argues that the lake is “navigable” both within the meaning of PA 291 and for purposes of public recreation, and refers us to Moore v. Sanborne (1853), 2 Mich 520, where a river with a similar capacity was held to be “navigable.” More broadly, the Attorney General would have the “navigability,” and hence state regulation and public use, of a body of water depend in all cases on its suitability for the use in question. Since Wood lake is suitable for recreation, the public may use it for recreation.
PA 291 is described in part in its preamble as an “Act to protect riparian rights and the public trust in navigable inland lakes and streams, including the St. Mary’s, St. Clair and Detroit rivers, and to regulate the uses thereof.” “Lake or stream” is defined by section 2(a) of tbe act as “any navigable inland lake or stream wholly or partly within this state including the St. Mary’s, St. Clair and Detroit rivers, but excluding the Great Lakes and the bays and harbors thereof.” It seems to us that if the term “navigable” as it is used in the act contemplates the broadened meaning urged by the Attorney General, its use as a restrictive modifier is pointless, since virtually every body of water in the state is suitable for some kind of recreation. Its use is equally pointless if it is construed to mean “capable of floating logs,” since most bodies of water also have this capacity. It is true of course that the river in Moore, supra, was characterized as “navigable” and that it was capable of floating logs. But the authorization sought there was not for just the floatation of logs, but for the transportation of logs, and then by persons other than the owners of the bottom land over which passage was made, a use recognized to be a public necessity. No one here seeks to float logs, and, more importantly, it is clear that Wood lake is unsuited for the transportation of logs except by its riparian owners. In conclusion, the meanings urged by the Attorney General, if accepted, would extend the reach of PA 291 beyond the limit allowed by a fair reading. We think the term instead contemplates any valuable boat or vessel navigation, the meaning associated with the term at the common law of this state, Shepard v. Gates (1883), 50 Mich 495, and recently given to it as it appears in the inland lake level act of 1961, In re Martiny Lakes Project (1968), 381 Mich 180. Since Wood lake is not suited for any valuable boat or vessel navigation, it is not subject to the provisions of PA 291.
Although the Conservation Department is without standing to complain of a landfill, there remains the question whether the public may use Wood lake for recreation. The cases cited by the Attorney G-eneral do not support his equation of a capacity for recreational use with a public right of recreational use. In Kerley v. Wolfe (1957), 349 Mich 350, an owner of riparian land on a lake sought to enjoin another riparian from fencing off the shallow waters fronting the latter’s land. The waters were suitable for boating and fishing, and the Court did note that since they were navigable in fact they were navig’able in law. But the person who sought to use the shallow waters was a riparian owner, not a member of the public. As the Court said in affirming the injunction, the right sustained “is the doctrine of riparian rights, the essence of which is that no upper or lower proprietor may dispute passage by water of his riparial neighbor when the stream or lake commonly enjoyed by all has been made navigable in fact by nature.” Collins v. Gerhardt (1926), 237 Mich 38, and Attorney General, ex rel. Director of Conservation, v. Taggart (1943), 306 Mich 432, involve public fishing in rivers fit for the transportation of logs. In Collins the owner of riparian land on both sides of a stretch of the Pine river brought a trespass action against an angler who had climbed a wire fence strung from bank to bank. In Taggart a fisherman sought to enjoin the defendant riparians from maintaining a seven-foot hole in the bed of the river. In both cases the Supreme Court upheld a right in the public to fish, arguing that since the rivers were fit for floating logs, they were navigable in law under Moore v. Sanborne, supra, and therefore could be used by the public for fishing. In Taggart, p 443, however, the Court expressly limited the reach of the decisions:
“The instant case does not in any way affect very small trout, streams on private property which have not been used by tbe public for logging or for boating; Burroughs v. Whitwam, 59 Mich 279; nor does it cover private lakes and ponds owned by the abutting property owners. As to such bodies of ivater the riparian otvner has complete control(Emphasis added.)
In Cass County Parke Trustees v. Wendt (1960), 361 Mich 247, the last case that is at all favorable to the Attorney General’s position, the plaintiffs sought to enjoin the owners of riparian land from fencing off Eagle lake at a point where it touched a public highway (one gained through statutory user). Although the Court did affirm the grant of an injunction protecting the public right of recreational use, the case is of little precedential value here since the Court characterized the lake as “navigable” without mentioning its size or whether it had inlets or outlets.
The cases cited by the plaintiffs, on the other hand, clearly reject the equation of a capacity for recreational use alone with “navigability” and public use, and they do so even where the public has lawful access to the waters in question. A right of exclusive possession is said to rest in the riparian owners of small lakes and ponds. In Winans v. Willetts (1917), 197 Mich 512, the Court upheld an injunction issued at the instance of the sole riparian owner of a 100-acre lake that was ultimately connected to Lake Erie. The defendant fisherman gained access from a public highway touching the lake. Several fishermen were likewise enjoined in Putnam v. Kinney (1929), 248 Mich 410, from cutting a fence and fishing on a 112-acre lake that was without inlet or outlet and was completely surrounded by the plaintiffs’ lands. The fence ran along a line where a public highway by user touched the water. The Court said that Winans was controlling and quoted approvingly from Giddings v. Rogalewski (1916), 192 Mich 319, 324:
“The grounds upon which it is contended this lake is 'navigable waters’ are that it is boatable, and that fish frequenting it can pass in and out by an underground channel connecting with other waters. Both facts, if shown, fail to furnish the test of navigability. The true test is whether the waters under consideration are capable of being used by the public as thoroughfares or highways for purposes of commerce, trade, and travel — of affording a common passage for transportation and travel by the usual and ordinary modes of navigation.”
In light of these cases, we conclude that Wood lake, a 74-acre lake lacking inlets or outlets, is non-navigable, private, and subject to the exclusive use and possession of its riparian owners. The trial court was correct in enjoining the individual defendants from using its waters.
As mentioned above, we find it unnecessary to resolve either the procedural question involving the claims of public highway and prescriptive easement, or the merits of these claims, since the lake may not be used for recreation even if the public does have lawful access. Implicit here is the assumption that the state and the public are interested in McMullan road only as a means of reaching Wood lake. There exists, however, the possibility that members of the public will use the road for some reason unrelated to the gaining of access to the lake, and although public use of the road would be in violation of the injunction issued below, a question unresolved by this appeal would again be presented. Despite the present opportunity to resolve this question once and for all, we choose not to do so. The plaintiffs clearly do not want McMullan road to be public. More importantly, the claim of public highway is only incidental to the state’s real objective — recreational nse of Wood lake. However, this objective is now unattainable. We doubt that the state would want the burden of the road without the benefit of the lake.
The order granting an injunction in favor of the plaintiffs is affirmed.
All concurred.
MCLA § 281.731 et seq. (Stat Ann 1968 Eev § 11.451 et seq.)
MCLA § 221.20 (Stat Ann 1958 Bev § 9.21). The plaintiffs oppose any extension of the road beyond 14 feet should this Court hold that it is a highway by user, and cite Eager v. State Highway Commissioner (1965), 376 Mich 148, where a highway by user was said to be only as wide as its traveled portion since application of the statute to. a greater width up to 66 feet is unconstitutional as a taking of property without just compensation.
The plaintiffs also oppose the latter claim on its merits, contending that it is defective in the first place because a prescriptive easement of access in favor of the public, so far as either party's research discloses, is unknown to the law of this state.
MOT.A § 281.61 et seq. (Stat Ann 1968 Rev § 11.300 et seq.) | [
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R. B. Burns, J.
Plaintiff, First Congressional District Democratic Party Organization, was created in .1964 as a statutory organization of the democratic party for the first congressional district of Michigan.
In' 1965 the defendant corporation incorporated ás a nonprofit corporation as the First Congressional District Democratic Organization, Incorporated.
Plaintiffs filed suit in the circuit court to restrain the defendant, corporation and its president, Frank R. Owens, from using a name so similar -to the plaintiffs’ name.' The- trial court refused to grant the restraining order for two reasons:
“[N]othing anywhere in the statute * * * seems to give the party * * * the exclusive right to' the phrase ‘District Democratic Party' Organization’. * * * [T]here is nothing in the opinion of this court that creates any confusion between that name and the name of the defendant * * * .”
By statute and case law the names of incorporated and - unincorporated bodies have been protected. MOLA. § 450.6 (Stat Ann 1963 Rev § 21.6) states:
‘■‘No corporation shall assume any name which is likely t'o mislead the public, or any name already in use by any other existing corporation * * * or so nearly similar * * * as to lead to confusion # #. * »
Similar standards protect unincorporated bodies. Supreme Lodge Knights of Pythias v. Improved Order Knights of Pythias (1897), 113 Mich 133; MCLA § 430.101 (Stat Ann 1957 Rev § 18.671).
In determining whether two names are so similar that.the probability of confusion exists, it is not necessary to show actual confusion. It is sufficient if confusion is probable or likely to occur. The confusion is such as would exist in minds of ordinary intelligence. Metal Craft Co. v. Metalcraft Heater Corporation (1931), 255 Mich 642.
An appellate court hears a chancery case de novo and gives due weight to. the findings of the. trial court, and does not reverse a trial court unless convinced that it would have reached a different conclusion had it occupied the position of the trial court. We are convinced that we would, have reached a different conclusion than the trial court had we been sitting in its place.
The names of the parties to this appeal are nearly identical; not only are the samé words used but they are set forth in the same order and arrangement. Therefore, the case is reversed and remanded to the circuit c'óurt'for the entry of an Order restraining the defendant corporation from using a name so similar to the plaintiff’s name. Costs to plaintiffs.
All concurred. | [
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Per Curiam:.
This opinion was written by Justice Blair Moody, Jr., prior to his death on November 26, 1982. We concur in this opinion and adopt it as our own.
This workers’ compensation case focuses on an employee’s entitlement to total and permanent disability benefits after an initial receipt of benefits for 800 weeks from the date of injury. The questions presented are: (1) what is the proper standard to employ under MCL 412.9(a); MSA 17.159(a) in determining whether a worker who has received total and permanent disability benefits for the statutory conclusive presumption period of 800 weeks continues to be totally and permanently disabled and entitled to additional workers’ compensation benefits; and (2) whether MCL 412.11; MSA 17.161, which subjects benefits to a setoff by wages earned, is applicable to the post-800-week period.
I
The plaintiff, Donald Kidd, was born in 1933. In July, 1953, he began working as a trim press operator for AC Spark Plug Division of General Motors Corporation. On April 25, 1960, Mr. Kidd was involved in a work-related accident which resulted in the amputation of the fingers of both hands. Mr. Kidd returned to work for defendant in late 1960, but was given a permanent restriction against the use of presses.
On December 21, 1973, following a full hearing in which both General Motors Corporation and the Second Injury Fund participated, Mr. Kidd was found to be totally and permanently disabled as a result of the loss of the industrial use of both hands. Plaintiff received total and permanent disability benefits under the provisions of MCL 412.9(a); MSA 17.159(a) and MCL 412.10; MSA 17.160 from GMC and the fund. These benefits were terminated on August 24, 1975, the expiration of the statutory 800 weeks from the date of injury.
Plaintiff then petitioned for a hearing against GMC and the fund alleging his entitlement to benefits after 800 weeks. A second hearing was held. Plaintiff testified at this hearing that he returned to work for GMC as a raw material inspector in late 1960. Plaintiffs employment since that time has been continuous and at wages in excess of those earned at the time of injury. There was no dispute over the fact that Mr. Kidd could no longer perform his pre-injury job as trim press operator.
On June 28, 1976, the hearing referee found that plaintiff’s physical condition had worsened since the accident and that plaintiff was totally and permanently disabled in fact and in law. GMC and the fund were ordered to continue the payment of benefits with no wage offset.
GMC and the fund appealed to the Workers’ Compensation Appeal Board which found that plaintiffs physical condition had not improved but that he had been regularly employed by GMC since late 1960 at wages in excess of those he was earning when injured. Citing Clark v Gerity Michigan Corp, 84 Mich App 151; 269 NW2d 510 (1978), lv den 403 Mich 856 (1978), the WCAB reversed the award of benefits beyond 800 weeks.
Application for leave to appeal to the Michigan Court of Appeals was denied in an order citing Clark. Docket No. 46517 (February 1, 1980). This Court granted leave to appeal. 409 Mich 946 (1980).
II
It is well-established that to qualify for the statutory 800-week conclusive presumption a claimant must come within the statutory defini tion of total and permanent disability. Hier v Boichot Concrete Products Corp, 379 Mich 605; 153 NW2d 753 (1967); Verberg v Simplicity Pattern Co, 357 Mich 636; 99 NW2d 508 (1959). As a result of his 1960 injury, plaintiff qualified for the 800 weeks of total and permanent disability benefits due to the loss of the industrial use of both hands.
Plaintiff contends that after the 800-week period, although the conclusive presumption of total and permanent disability ends, the standard to determine whether the worker is still permanently and totally disabled is the same one used to make the pre-800-week determination, i.e., does the claimant come within the statutory definition of total and permanent disability?
Defendants, on the other hand, contend that the post-800-week standard is different in that not only the worker’s physical state but also the worker’s actual earnings are to be considered in determining whether the worker remains permanently and totally disabled. The defendants thus suggest that a second requirement must be considered: whether the employee has re-established a capacity to earn wages in gainful and continuous employment. If so, benefits do not extend beyond the 800-week period.
From these two competing points of view emerge two distinct issues involving the post-800-week determination. First, what standard is to be applied to find whether a worker still suffers from a permanent and total disability and is therefore entitled to a continuation of compensation benefits. Second, assuming entitlement to benefits, whether such compensation payments are subject to a setoff by wages earned after the 800-week period.
A
The subject of the first issue is the following portion of MCL 412.9(a); MSA 17.159(a):
"[T]he conclusive presumption of total and permanent disability shall not extend beyond 800 weeks from the date of injury, and thereafter the question of permanent and total disability shall be determined in accordance with the fact, as the fact may be at that time.”
The Legislature has specifically defined "permanent and total disability” in MCL 412.10; MSA 17.160. Any claimant whose physical condition places him or her within one of the delineated categories is totally and permanently disabled. In this case, there is no dispute with respect to the initial finding that Mr. Kidd had lost the industrial use of both hands, thus coming within subsection (7).
The determination of whether a worker has lost the ability to use his or her injured limbs in industry is made by examining the physical condi tion of the injured limbs, Le., have the limbs been injured to such a degree that their industrial use is lost. Pipe v Leese Tool & Die Co, 410 Mich 510; 302 NW2d 526 (1981). Unlike general disability cases, the earning of post-injury wages is not relevant in specific loss cases under MCL 412.10; MSA 17.160. As we stated in Miller v Sullivan Milk Products, Inc, 385 Mich 659, 666; 189 NW2d 304 (1971):
"A review of specific loss cases reveals that loss of 'industrial use’ is a question of fact. The test of that fact has been to equate such a loss with the physical or anatomical loss of use of a member of the body rather than with an economic reality test. * * * If 'loss of use’ is established, recovery follows even though there are no economic consequences from the loss.” (Citations omitted.)
See also Paulson v Muskegon Heights Tile Co, 371 Mich 312; 123 NW2d 715 (1963), and Dechert v General Motors Corp, 92 Mich App 124; 284 NW2d 751 (1979).
In contrast with this setting, defendants contend that in the post-800-week situation the claimant’s physical state and his actual earnings and capacity to earn wages should be considered to determine whether he remains permanently and totally disabled. It is asserted that economic consequences should be one of the factors evaluated at this point to ascertain whether total and permanent disability is still the fact. Defendants claim support for their position in the following language of MCL 412.9(a); MSA 17.159(a):
"[T]he conclusive presumption of total and permanent disability shall not extend beyond 800 weeks from the date of injury, and thereafter the question of perma nent and total disability shall be determined in accordance with the fact, as the fact may be at that time.” (Emphasis added.)
We are not persuaded by defendants’ contention that the Legislature intended the post-800-week standard for permanent and total disability to be in any way different than the initial 800-week standard.
There is no indication in this or any other section of the Worker’s Disability Compensation Act that any definition of "total and permanent disability” resulting from a single injury, other than the one given in MCL 412.10; MSA 17.160, is to be used. The act does not refer to facts such as the plaintiff’s financial status or wage-earning capacity. In defining total and permanent disability, it enumerates only health impairments. This meaning is emphasized within MCL 412.9(a); MSA 17.159(a) itself. Several lines both before and after the quoted portion refer to permanent and total disability "as defíned in sections 8a and 10”. (Emphasis added.) Therefore, there is no statutory basis on which to conclude that the Legislature intended a different standard for or definition of "permanent and total disability” to prevail after 800 weeks. See Verberg v Simplicity Pattern Co, supra, 357 Mich 642.
The significance of the 800-week period is that once a claimant has proved that. he or she is permanently and totally disabled as defined by the act, it is conclusively presumed that this disability continues for 800 weeks. Rebutting evidence may not be offered because the conclusive presumption is actually a substantive rule of law.
After the 800-week period, the conclusive presumption no longer applies and "thereafter the question of permanent and total disability shall be determined in accordance with the fact, as the fact may be at that time”. MCL 412.9(a); MSA 17.159(a). The presumption operates to supply the real facts; thus, when it is no longer in effect, the then physical condition of the worker must come within the statutory definition.
It is axiomatic that when the language of an act clearly enunciates a standard and a definition which coincidentally also comport with the spirit and purpose of the act, it is repugnant to attempt to judicially read into the act other requirements or conditions that operate to defeat or limit its aim. The language of the Worker’s Disability Compensation Act gives no indication that the Legislature intended that a different standard is to be used post 800 weeks. Rather, the logical interpretation is that the Legislature meant what it said to the effect that post 800 weeks the claimant may no longer rely on the presumption but must prove in fact that he or she still suffers from a permanent and total disability as defined in the act. Accordingly, the standard to be used is the same pre- and post-800 weeks: whether the physical condition of the claimant comes within the statutory definition of total and permanent disability. When loss of industrial use is the applicable category, the general standard relates to the physical impairment of the injured limbs. Actual earnings of the claimant are not considered. See Pipe v Leese Tool & Die Co, supra; Martin v Ford Motor Co, 401 Mich 607; 258 NW2d 465 (1977); Mitchell v Metal Assemblies, Inc, 379 Mich 368; 151 NW2d 818 (1967); Pleiness v Mueller Brass Co, 56 Mich App 169; 223 NW2d 634 (1974).
To be sure, in the case of specific loss less than total disability, the law of general disability applies at the end of the specified period. If a claimant is still unable to perform the work done when injured at the time benefits paid for the specific loss have expired, the claimant would be entitled to collect further compensation under the general disability sections of the act. Hlady v Wolverine Bolt Co, 393 Mich 368; 224 NW2d 856 (1975); Van Dorpel v Haven-Busch Co, 350 Mich 135; 85 NW2d 97 (1957). See also Powell v Casco Nelmor Corp, 406 Mich 332; 279 NW2d 769 (1979). In the case of assessing permanent and total disability, however, § 9(a) itself specifies the standard to be used at the end of the 800-week period: "permanent and total disability shall be determined in accordance with the fact, as the fact may be at that time.” Pursuant to the statutorily mandated definition of what total and permanent disability means, this fact is the actual fact of the claimant’s physical condition which is no longer conclusively presumed.
Defendants argue that the Legislature could not have intended that physical condition alone should be determinative because once an injured worker comes within the statutory definition of total and permanent disability, his or her physical condition is not likely to change. Thus, the post-800-week hearing to determine the worker’s then physical condition would be a wasted effort.
It is true that most workers who initially come within the statutory definition will never experience an improvement in their physical conditions. This is an obvious conclusion when one examines the catastrophic physical conditions delineated in § 10. However, it does not follow that invariably there can be no improvements. While it is clear that amputated limbs will not regenerate, improvement of physical condition in every other category of § 10 is certainly possible. See, e.g., Pleiness, supra, 171.
Defendants also argue that if there is a subsequent change in physical condition, then the initial injury could not have been total and permanent. Certainly at the time of injury a claimant’s physical condition must then appear to be total and permanent for him or her to come within the statutory definition. However, aside from the potential of regeneration in some categories, we credit the Legislature with knowledge of the quantum medical advances continually being made. A physical condition which renders a worker totally and permanently disabled today may not be the same 800 weeks hence. We find these assertions by the defendants insufficient to cause an interpretive alteration of what the Legislature specifically defined to be total and permanent disability.
At plaintiff’s initial hearing in 1973, it was determined that he had lost the industrial use of both hands. When the 800-week conclusive-presumption period ended, plaintiff’s physical condition had not changed. The WCAB found as a matter of fact that the physical condition of plaintiff’s hands had not improved but that plaintiff had been "regularly employed doing work that appears to contribute to defendant’s productivity”. The WCAB denied benefits stating that it was bound by law to comply with Clark v Gerity Michigan Corp, 84 Mich App 151; 269 NW2d 510 (1978), lv den 403 Mich 856 (1978).
The facts of Clark are closely analogous to those of the instant case. Mr. Clark, while working as a punch press operator, suffered the industrial amputation of both hands. He received total and permanent disability benefits for 800 weeks. In 1962, six years subsequent to his injury, Mr. Clark went to work as a night watchman and supervisor of boys in a county juvenile home. This employment was continuous and at wages greater than those he had been earning at the time of injury. The Court of Appeals denied post-800-week benefits because Mr. Clark’s "incapacity for work at common labor terminated when he went to work in 1962”. 84 Mich App 157.
There are basically two errors in the Court of Appeals analysis. First, the Court found that the Legislature intended further entitlement to disability benefits for the statutorily defined totally and permanently disabled to be determined by using the same standard as in general disability cases. Although such an interpretation of legislative intent is contrary to both the legislative and case history of the act, the Court of Appeals opinion offers no explanation for its interpretation.
Secondly, the Court of Appeals opinion incorrectly interpreted and applied the general disability standard to the Clark facts. The Clark Court’s finding that Mr. Clark was not incapacitated because he could do some work cannot be reconciled with the law of general disability.
It is well-established that the standard to be used in general disability cases is whether there is an impairment in wage-earning capacity. This is determined by comparing post-injury with pre-injury ability to compete with the able-bodied for jobs within the type of work in which the injury occurred. See Powell, supra; Kaarto v Calumet & Hecla, Inc, 367 Mich 128; 116 NW2d 225 (1962); Levanen v Seneca Copper Corp, 227 Mich 592; 199 NW 652 (1924). The earning of wages alone is not determinative of a wage-earning capacity. Evans v United States Rubber Co, 379 Mich 457; 152 NW2d 641 (1967). Thus, it was error for the Court of Appeals to find that Mr. Clark’s job as a common laborer was enough to establish his post-injury wage-earning capacity. The Clark standard which would circumscribe the statutory definitions and instead employ the general disability standard is erroneous. For the above reasons, Clark v Gerity Michigan Corp is overruled.
In the final analysis, the statute clearly mandates that the proper standard determinative of whether a worker remains totally and permanently disabled when the 800-week conclusive-presumption period ends is whether the worker’s physical condition at that time comes within the statutory definition of total and permanent disability. It was factually determined by the WCAB that the plaintiffs disability had not improved. Plaintiffs entitlement to benefits was factually established.
B
Having determined that plaintiff is entitled to compensation benefits, we next address the issue of whether compensation is payable, Le., are these benefits subject to setoff by wages earned subsequent to the 800-week period.
Plaintiff contends that setoff is not applicable in this case and cites Halas v Yale Rubber Mfg Co, 381 Mich 542; 164 NW2d 15 (1969), as support for this position. We find that Halas does not control the case at bar.
Mr. Halas, while employed as an unskilled laborer in 1950, suffered the amputation of both hands. It is important to note at this point that an employer’s liability for compensation benefits, both the amount of benefits and the time period over which these benefits extend, is determined in compliance with the law in effect on the date of injury. Tarnow v Railway Express Agency, 331 Mich 558, 563; 50 NW2d 318 (1951). On the date of Mr. Halas’ injury, the law then in effect stated that the loss of both hands constituted total and permanent disability for which the employer was liable for a specific amount of benefits for a specified number of weeks.
While Mr. Halas was receiving these benefits certain amendments to the Worker’s Disability Compensation Act were enacted. The 1955 amend ment to § 9(a) changed the initial employer liability to the totally and permanently disabled worker from a specified number of weeks to "the duration of such permanent and total disability”. This provision had no effect on Mr. Halas, however, because his employer’s liability had already been determined as of the date of injury as discussed above.
Another provision of the 1955 amendment, however, did have a major effect on Mr. Halas’ situation. This was the creation of the Second Injury Fund which made increased benefits available to the totally and permanently disabled worker. The fund became liable for: (1) the difference between the amount of basic benefits in effect on the date of injury for which the employer was liable and the current amount of benefits in accordance with the schedule of benefits, and (2) the continuance of benefits for the duration of the total and permanent disability of the worker in those cases where the date of injury was prior to June 25, 1955, when the employer’s liability ended after a specified number of weeks. Therefore, when the liability of Mr. Halas’ employer had ended, the Second Injury Fund became solely liable for the continuation of Mr. Halas’ benefits for the duration of his total and permanent disability.
After Mr. Halas had received benefits for 800 weeks from the date of his injury, a hearing was held to determine if he was in fact totally and permanently disabled at that time and thus entitled to the continuation of benefits payable from the fund. At the time of the hearing, Mr. Halas was employed at wages equal to or higher than his earnings at the time of the injury._
The hearing referee held on February 21, 1966, that Mr. Halas was totally and permanently disabled and that although he was employed at wages equal to or higher than his earnings at the time of his injury, no setoff of wages was allowed. The Workers’ Compensation Appeal Board and the Halas Court affirmed these findings.
The initial issue addressed by this Court in Halas was whether Mr. Halas continued to be totally and permanently disabled in compliance with the standard we have previously considered as set forth in § 9(a):
"The conclusive presumption of total and permanent disability shall not extend beyond 800 weeks from the date of injury, and thereafter the question of permanent and total disability shall be determined in accordance with the fact, as the fact may be at that time.” MCL 412.9; MSA 17.159 as amended by 1965 PA 44.
The Halas Court adopted the factual findings of the WCAB that Mr. Halas was still permanently and totally disabled and thus entitled to the continuation of benefits to be paid by the fund.
The other issue which the Halas Court addressed was whether Mr. Halas was entitled to receive benefits at current rates without diminution or setoff for his current earnings. The Court found conflict between §§ 9 and 11. The pertinent portion of § 9(a) then provided:
"Payments from this second injury fund shall continue after the period for which any such person is otherwise entitled to compensation under this act for the duration of such permanent and total disability according to the full rate provided in the schedule of benefits.” MCL 412.9; MSA 17.159 as amended by 1965 PA 44.
The pertinent portion of § 11, the setoif provision, stated:
"The weekly loss in wages referred to in this act shall consist of such percentage of the average weekly earnings of the injured employee computed according to the provisions of this section as shall fairly represent the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the injury, the same to be fixed as of the time of the injury, but to be determined in view of the nature and extent of the injury. The compensation payable, when added to his wage earning capacity after the injury in the same or another employment shall not exceed his average weekly earnings at the time of such injury.” MCL 412.11; MSA 17.161 as amended by 1965 PA 44.
The Halas Court determined that the Legislature did not intend that § 9 should be subject to § 11. The Court’s rationale centered on the fact that § 11 was enacted in 1927, well before the 1955 and 1956 amendments which instituted "a new concept for compensating” the seriously injured worker: creation of the Second Injury Fund. Halas, 550. Section 9(a) was interpreted to mean that when the employer’s obligation to pay compensation benefits ended, the Second Injury Fund would continue payment of the benefits. Since Mr. Halas’ injury occurred prior to the 1955 and 1956 amendments to § 9, his employer’s liability for benefits had ended and it was only the Second Injury Fund’s liability in the post-800-week period which was determined.
The Halas Court’s rationale for denying setoff is premised on this fact. Because the post-800-week benefits were to be paid by the fund, the cost thus assessed to all employers and not to the individual employer, the Court opined that this new concept for compensating the totally and permanently injured should not be subject to § ll’s setoff provision which was enacted in 1927.
This line of reasoning is not applicable to the case at bar. Expanding the previously limited liability of employers for a specific amount of benefits for a specified number of weeks, the 1955 amendment to § 9 made employers liable for all basic compensation benefits (those in effect at the time of the injury) for the duration of workers’ total and permanent disabilities. Welch v Jackson County Road Comm, 51 Mich App 372; 214 NW2d 871 (1974), lv den 392 Mich 757 (1974); Miller v Dunn Paper Co, 47 Mich App 471; 209 NW2d 519 (1973). Thus, in cases where the date of injury is subsequent to June 25, 1955, the effective date of this amendment, the employer is liable for basic benefits for the duration of the worker’s permanent and total disability. Unlike Halas, the employer’s liability does not end after a specified number of weeks when the Second Injury Fund takes over payment of the benefits. Rather, the Second Injury Fund is only liable in those cases for any increases in benefits in accordance with subsequent statutory amendments.
Mr. Kidd’s 1960 injury date places his case within this category. Unlike the employer in Halas, Mr. Kidd’s employer is liable for the basic benefits for the duration of Mr. Kidd’s disability. Because Mr. Kidd’s employer continues to be liable for the basic benefits, the Halas Court’s rationale on this point does not apply to the case at bar.
Also to support its view that the setoff provision of § 11 is not applicable to § 9, the Halas Court relied on the language in § 9(a) which states that payments from the Second Injury Fund shall be paid "according to the full rate provided in the schedule of benefits”. From this language, the Halas Court inferred that the Legislature intended post-800-week total and permanent disability benefits to be exempt from § ll’s setoff provision. We do not believe that this language of § 9(a), read in context, supports such an inference. Section 9(a) extant at the time of the Halas Court’s analysis read in its entirety as follows:
"Sec. 9. (a) While the incapacity for work resulting from the injury is total, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employee, a weekly compensation of 66-2/3% of his average weekly wages, but not more than $58.00 as of September 1, 1965, $61.00 as of September 1, 1966 and $64.00 as of September 1, 1967 if such injured employee has no dependents; $63.00 as of September 1, 1965, $66.00 as of September 1, 1966 and $69.00 as of September 1, 1967 if 1 dependent; $70.00 as of September 1, 1965, $72.00 as of September 1, 1966 and $75.00 as of September 1, 1967 if 2 dependents; $77.00 as of September 1, 1965, $79.00 as of September 1, 1966 and $81.00 as of September 1, 1967 if 3 dependents; $84.00 as of September 1, 1965, $86.00 as of September 1, 1966 and $87.00 as of September 1, 1967 if 4 dependents and $91.00 as of September 1, 1965, $92.00 as of September 1, 1966 and $93.00 as of September 1, 1967 if 5 or more dependents, except as provided in subsection (f). Compensation shall be paid for the duration of the disability. Weekly payments shall in no event be less than $27.00 if there are no dependents; $30.00 if 1 depen dent; $33.00 if 2 dependents; $36.00 if 3 dependents; $39.00 if 4 dependents; and $42.00 if 5 or more dependents; except as provided in subsection (f). Compensation shall be paid for the duration of the disability. The conclusive presumption of total and permanent disability shall not extend beyond 800 weeks from the date of injury, and thereafter the question of permanent and total disability shall be determined in accordance with the fact, as the fact may be at that time. Any permanently and totally disabled person as defined in this act who, on or after June 25, 1955, is entitled to receive payments of workmen’s compensation under this act in amounts per week of less than is presently provided in the workmen’s compensation schedule of benefits for permanent and total disability and for a lesser number of weeks than the duration of such permanent and total disability shall after the effective date of any amendatory act, by which his disability is defined as permanent and total disability or by which the weekly benefit for permanent and total disability is increased, receive weekly, without application, from the second injury fund, an amount equal to the difference between what he is now or shall hereafter be entitled to receive from his employer under the provisions of this act as the same was in effect at the time of his injury and the amount now provided for his permanent and total disability by this or any other amendatory act with appropriate application of the provisions of paragraphs Ob), (c), (d) and (e) of this section since the date of injury. Payments from this second injury fund shall continue after the period for which any such person is otherwise entitled to compensation under this act for the duration of such permanent and total disability according to the full rate provided in the schedule of beneñts.” (Emphasis added.) MCL 412.9; MSA 17.159 as amended by 1965 PA 44.
We are persuaded that the last sentence of § 9(a) means that, limited to those cases where the employer’s liability to the totally and permanently disabled has ended, the benefits will continue to be paid by the Second Injury Fund for the duration of the total and permanent disability at the current rate as set forth in the schedule of benefits. The Legislature has made it clear that the Second Injury Fund’s liability differs from that of the employer. As we have discussed, the Second Injury Fund, unlike the employer, is liable for increases in the amount of benefits payable as provided in amendments to the Worker’s Disability Compensation Act. Also, unlike the employer, the Second Injury Fund, at the time applicable to this case, was not subject to the 2/3 limitation of weekly benefits. King v Second Injury Fund, 382 Mich 480; 170 NW2d 1 (1969). While the employer’s liability is established on the date of injury, the fund’s liability fluctuates as applicable portions of the act are amended but is always payable at the then current rate as set forth in the schedule of benefits. We find no basis in the language of § 9 for the Halas Court’s inference that post-800-week total and permanent disability benefits are exempt from § ll’s setoff provision.
Section 11 sets forth the intended method of computing "weekly loss in wages referred to in this act”. This method applies to all cases in which "weekly loss in wages” must be computed. Section 11 also limits the compensation payable to not exceed the average weekly earnings at the time of injury. There is no specific language in § 11 itself which limits the applicability of this setoff to certain types of disability only. Rather, § 11 is written as the general rule.
Pursuant to legislative intent certain exceptions to § ll’s setoff provision have been recognized. For example, it is well-established that § 11 is not applicable to the mandatory disability benefits payable for specific losses or during the 800-week period of conclusively presumed total and perma nent disability. Louagie v Merritt, Chapman & Scott, 382 Mich 274, 283-284; 170 NW2d 13 (1969). However, in these situations language in other sections of the act indicates that the Legislature did not intend that § ll’s setoff should apply. With respect to the instant situation, however, we are not persuaded that the language of § 9 suggests that the Legislature intended the post-800-week period to be another such exception. This Court should not add to the exceptions to the statutory mandate of § 11 without a clearer indication of legislative intent than the inference relied on in Halas. See Powell, supra, 406 Mich 347-348; Lynch v Briggs Mfg Co, 329 Mich 168; 45 NW2d 20 (1950); MacDonald v Great Lakes Steel Corp, 268 Mich 591; 256 NW 558 (1934).
Accordingly, we hold that the compensation payable to a totally and permanently disabled worker subsequent to the initial 800-week period is subject to § ll’s wage setoff.
In the case at bar, the WCAB found that Mr. Kidd’s physical condition had not improved. Therefore, he remained totally and permanently disabled and entitled to post-800-week compensation benefits. Mr. Kidd’s post-800-week employment at wages greater than when he was injured subjects these benefits to § 11.
Conclusion
The proper standard to employ in determining whether a worker who has received total and permanent disability benefits for 800 weeks continues to be totally and permanently disabled and thus entitled to compensation benefits is whether the worker’s physical condition at the time comes within the statutory definition of total and permanent disability. MCL 412.10; MSA 17.160. We further hold that the setoff provision of MCL 412.11; MSA 17.161 is applicable to this post-800-week period.
This case is remanded to the WCAB for proceedings consistent with this opinion.
Fitzgerald, C.J., and Kavanagh, Williams, Levin, Coleman, and Ryan, JJ., concurred.
The 1912 act, MCL 411.1 et seq.; MSA 17.141 et seq., in effect in 1960, was repealed and replaced by the 1969 act, MCL 418.101 et seq.; MSA 17.237(101) et seq.
An injured employee’s right to workers’ compensation is controlled by the law in effect at the time the right to compensation springs into existence. Tarnow v Railway Express Agency, 331 Mich 558, 563; 50 NW2d 318 (1951).
MCL 412.9(a); MSA 17.159(a):
"While the incapacity for work resulting from the injury is total, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employee, a weekly compensation of 66-2/3% of his average weekly wages, but not more than $33.00 if such injured employee has no dependents; $36.00 per week if 1 dependent; $40.00 if 2 dependents; $45.00 if 3 dependents; $51.00 if 4 dependents and $57.00 if 5 or more dependents. Weekly payments shall in no event be less than $18.00 if there are no dependents; $20.00 if 1 dependent; $22.00 if 2 dependents; $24.00 if 3 dependents; $26.00 if 4 dependents; and $28.00 if 5 or more dependents, and in no case shall the period covered by such compensation be greater than 500 weeks from the date of injury, nor shall the total compensation exceed an amount equal to 500 times the total weekly amount payable under this section 9, except for permanent and total disability as defined in sections 8a and 10, when the compensation shall be paid for the duration of such permanent and total disability: Provided, That the conclusive presumption of total and permanent disability shall not extend beyond 800 weeks from the date of injury, and thereafter the question of permanent and total disability shall be determined in accordance with the fact, as the fact may be at that time. Any permanently and totally disabled person as defined in sections 8a and 10 who, on or after June 25, 1955, is entitled to receive payments of workmen’s compensation under this act in amounts per week of less than is presently provided in the workmen’s compensation schedule of benefits for permanent and total disability and for a lesser number of weeks than the duration of such permanent and total disability shall after the effective date of this amendatory act receive weekly, without application, from the second injury fund, an amount equal to the difference between what he is now receiving per week and the amount per week now provided for permanent and total disability with appropriate application of the provisions of paragraphs (b), (c), (d) and (e) of this section since the date of injury. Payments from this second injury fund shall continue after the period for which any such person is otherwise entitled to compensation under this act for the duration of such permanent and total disability according to the full rate provided in the schedule of benefits.”
The pertinent portion of MCL 412.10; MSA 17.160 states:
"Total and permanent disability, compensation for which is provided in section 9 hereof, means:
"(1) Total and permanent loss of sight of both eyes.
"(2) Loss of both legs or both feet at or above the ankle.
"(3) Loss of both arms or both hands at or above the wrist.
"(4) Loss of any 2 of the members or faculties enumerated in (1), (2) or (3).
"(5) Permanent and complete paralysis of both legs or both arms or of 1 leg and 1 arm.
"(6) Incurable insanity or imbecility.
"(7) Permanent and total loss of industrial use of both legs or both hands or both arms or 1 leg and 1 arm; for the purpose of this subsection (7) such permanency to be determined not less than 30 days before the expiration of 500 weeks from the date of injury.”
See fn 4.
See fn 4.
See fn 4 for the entire text of § 10. Section 8a refers to total and permanent disability resulting from a second injury which is not here applicable.
See McCormick, Evidence (2d ed), § 342, p 804; Pleiness v Mueller Brass Co, 56 Mich App 169; 223 NW2d 634 (1974).
In re Herbert’s Estate, 311 Mich 608, 613; 19 NW2d 115 (1945); Blodgett v Snobble, 295 Mich 374, 377-378; 295 NW 192 (1940).
This is analogous to the established principle that once a matter is adjudicated and an award is made, subsequent modifications may be made upon a showing that the employee’s physical condition has changed. Hlady v Wolverine Bolt Co, 393 Mich 368, 376; 224 NW2d 856 (1975). See also Gose v Monroe Auto Equipment Co, 409 Mich 147, 161; 294 NW2d 165 (1980).
See discussion above, pp 585-587.
In assessing Clark, even if the general disability standard were to be applied, we would be unable to find that this bilateral amputee was able to compete with the able-bodied for jobs within the type of work in which he was injured. The impairment to Mr. Clark’s wage-earning capacity would remain as long as the physical aspect of general disability remained.
MCL 412.8a; MSA 17.158(1) and MCL 412.10; MSA 17.160.
Setoff is mandated in paragraph 1 of MCL 412.11; MSA 17.161 which reads:
"The weekly loss in wages referred to in this act shall consist of such percentage of the average weekly earnings of the injured employee computed according to the provisions of this section as shall fairly represent the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the injury, the same to be fixed as of the time of the injury, but to be determined in view of the nature and extent of the injury. The compensation payable, when added to his wage earning capacity after the injury in the same or another employment, shall not exceed his average weekly earnings at the time of such injury.” As amended, 1965 PA 44.
MCL 412.9; MSA 17.159 and MCL 412.10; MSA 17.160.
1955 PA 250.
This portion of § 9(a) was further clarified by 1956 PA 195.
This emphasized portion of § 9 was deleted in the 1968 amended act, 1968 PA 227.
1955 PA 250; 1956 PA 195.
These benefits are calculated by subtracting the amount of the basic benefit paid by the employer from the current amount of benefits provided in the schedule of benefits.
See Downing, Workmen’s Compensation, 21 Wayne L Rev 735, 740 (1975).
We do not address those post-800-week situations in which either the employee has never been employed during the post-injury period or the employee was employed at some time during the post-injury period but has subsequently stopped working. For guidance in these situations we direct the reader to Powell, supra, 406 Mich 346-352, and Ferns v Russ Graham Shell Service, 413 Mich 550; 321 NW2d 380 (1982). | [
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The Court having issued its decision in this case on February 3, 1981 (410 Mich 231), and its order remanding this case to the Michigan Employment Security Board of Review on February 24, 1981, and the Michigan Employment Security Board of Review having issued its decision on remand on December 15, 1981, and plaintiffs having filed a motion to affirm the decision on remand of the Michigan Employment Security Board of Review, we find that there was substantial, competent and material evidence to support the agency’s finding on remand that the labor dispute was not the substantial contributing cause of plaintiffs’ unemployment. The motion to affirm the decision on remand is granted. | [
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R. B. Burns, J.
Plaintiff appeals an order of the Workmen’s Compensation Appeal Board.
Plaintiff was a signboard painter employed by defendant Northern Advertising Company. While installing an angle iron to a sign, standing on a ladder twelve feet above the ground, he came into contact with a live electric wire owned by Lake Superior District Power Company and fell to the street sustaining injuries.
Employers Mutual Insurance Company, the workmen’s compensation insurer for Northern Advertising Company, paid plaintiff benefits, his hospitalization costs and his medical costs.
Plaintiff and his wife instituted suit against Lake Superior District Power Company in circuit court for damages caused by the accident. Employers Mutual Liability Insurance Company intervened in the cause. The cause was settled by plaintiff and his wife with Lake Superior District Power Company for $32,000, and a release agreement was executed. At a subsequent date Northern Advertising Company dismissed its cause of action against Lake Superior District Power Company.
Employees Mutual Liability Insurance Company stopped all payments to plaintiff. At that time plaintiff had received $4,608 in compensation benefits and medical benefits of $3,070.
Plaintiff filed a petition for a hearing with the Bureau of Workmen’s Compensation. It was stipulated between the parties before the referee that expenses of the third party litigation in circuit court were attorney fees of $10,666.66 and costs of $440.64. The referee found that of the $32,000, $11,107.30 constituted costs and attorney fees which left the plaintiff with a net recovery of $20,892.70. He allowed Employers Mutual Liability Insurance Company credit of $20,892.70 for all compensation and medical payments made by them and for future liability. The Workmen’s Compensation Appeal Board affirmed the holding.
On appeal, plaintiff contends basically that he is entitled to the entire proceeds of the third-party action, and continuing compensation.
MCLA 413.15; MSA 17.189, the effective statute at the time of the action, read:
“Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than a natural person in the same employ or the employer to pay damages in respect thereof, the acceptance of compensation benefits or the taking of proceedings to enforce compensation payments shall not act as an election of remedies, but such injured employee or his dependents or their personal representative may also proceed to enforce the liability of such third party for damages in accordance with the provisions of this section. If the injured employee or his dependents or personal representative does not commence such action within 1 year after the occurrence of the personal injury, then the employer or its compensation insurance carrier may, within the period of time for the commencement of actions prescribed by statute, enforce the liability of such other person in the name of that person. Not less than 30 days before the commencement of suit by any party under this section, such party shall notify, by registered mail at their last known address, the workmen’s compensation commission, the injured employee, or in the event of his death, his known dependents, or personal representative or his known next of kin, his employer and the workmen’s compensation insurance carrier. Any party in interest shall have a right to join in said suit.
“Prior to the entry of judgment, either the employer or his insurance carrier or the employee or his personal representative may settle their claims as their interest shall appear and may execute releases therefor.
“Such settlement and release by the employee shall not be a bar to action by the employer or its compensation insurance carrier to proceed against said third party for any interest or claim it might have.
“In the event the injured employee or his dependents or personal representative shall settle their claim for injury or death, or commence proceeding thereon against the third party before the payment of workmen’s compensation, such recovery or commencement of proceedings shall not act as an election of remedies and any moneys so recovered shall be applied as herein provided.
“In an action to enforce the liability of a third party, the plaintiff may recover any amount which the employee or his dependents or personal representative would be entitled to recover in an action in tort. Any recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, shall first reimburse the employer or its workmen’s compensation insurance carrier for any amounts paid or payable under the workmen’s compensation act to date of recovery, and the balance shall forthwith be paid to the employee or his dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payment of compensation benefits.
“Expenses of recovery shall be the reasonable expenditures, including attorney fees, incurred in effecting such recovery. Attorney fees, unless otherwise agreed upon, shall be divided among the attorneys for the plaintiff as directed by the court. The expenses of recovery above mentioned shall be apportioned by the court between the parties as their interests appear at the time of said recovery.”
In Gamble v American Asbestos Products Co, 381 Mich 105 (1968), and Transamerican Freight Lines, Inc v Quimby, 381 Mich 149 (1968), the Supreme Court held that this section of the act gave the employer, or its insurer, a right of subrogation out of any settlement made between the employee and the third-party tortfeasor, even where the settlement agreement provided that any claims of the employer were not included in the settlement.
Employers Mutual Liability Company is entitled to subrogation of tbe money it has paid the plaintiff.
Potter v Vetor, 355 Mich 328 (1959); Horsey v Stone & Webster Engineering Corp, 162 F Supp 649 (WD Mich, 1958); and Mead v Peterson-King Co, 24 Mich App 530 (1970), held that the employer’s or his insurer’s right of subrogation was subject to its proportionate share of the expenses of recovery in the third-party action.
Horsey v Stone & Webster Engineering Corp, supra, set forth the formula that should be used to determine the proportionate share and this formula was approved in Mead v Peterson-King Co, supra. The. workmen’s compensation hearing referee did not use the correct formula, but forced the plaintiff to bear the entire expense of the third-party litigation. Moreover, as pointed out in Modeen v Consumers Power Co, 384 Mich 354 (1971), and Mead v Peterson-King Co, supra, neither the hearing referee nor the Workmen’s Compensation Appeal Board had jurisdiction to apportion such expenses. The act specifically provides that such expenses be apportioned by the court. The court referred to in the statute is the court which had jurisdiction over the third-party action.
Plaintiff also complains that funds from his wife’s settlement (loss of consortium and nursing care) were applied as a credit for advance workmen’s compensation benefits. The settlement agreement (paragraph c) asserts damages “for loss of consortium by Sylvia Hakkinen, in an indefinite amount” and does not mention nursing care.
Plaintiff failed to set a dollar figure for such damages in the settlement agreement and failed to have the trial court in the third-party action apportion such damages. The Bureau of Workmen’s Com pensation does not have the jurisdiction to determine such issues.
Since the Bureau of Workmen’s Compensation does not have the jurisdiction to determine the division and apportionment of expenses, this Court cannot apportion the expenses in this appeal. Mead v Peterson-King Co, supra.
The problem presented in this case is a recurring one in the courts and would merit definitive legislative action.
The case is remanded to the Bureau of Workmen’s Compensation for action in accordance with this opinion, after final determination of the third-party action now pending in the circuit court.
All concurred. | [
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Sullivan, J.
Petitioner appeals as of right from a probate court order denying her petition for supervision of a trust. Petitioner claims that the probate court erred in characterizing her interest as contingent, and in denying on that basis her request for information and . an accounting. We reverse and remand for further proceedings.
Petitioner’s grandfather, Hugh M. Childress, was settlor and trustee of an inter vivos trust created in 1980. In 1988, upon Hugh Childress’ death, the trust became irrevocable and respondent became the successor trustee. Respondent has provided this Court with only a redacted copy of the trust instrument. It appears, however, that the trust provides for discretionary payments from principal and income for the support of a lifetime beneficiary and for the remainder to go to petitioner and her father. The trust instrument provides for alternative distribution of the remainder interests in the event the remaindermen do not survive the life beneficiary.
Petitioner requested a copy of the trust and a list of the assets. When the trustee refused, petitioner filed her petition in probate court. Initially, the trustee refused to disclose the requested information, claiming that the income beneficiary feared petitioner because of her alleged drug use. At the evidentiary hearing that the probate court ordered with regard to this alarming charge, the trustee abandoned that claim. Instead, he argued that he was obligated to disclose only minimal information to petitioner because she was a contingent beneficiary and, under §814 of the Revised Probate Code, MCL 700.814; MSA 27.5814, only "presently vested beneficiaries” are entitled to more extensive disclosures.
After an in camera review of a complete copy of the trust instrument, the probate court issued its opinion and order, finding petitioner’s interest to be contingent. The court then ruled that the trustee had given petitioner all the information to which she was entitled under the statute, that is, a copy of the portions of the trust instrument that described her interest. The court required the trustee to post a $100,000 bond and reminded the trustee of his duty to notify petitioner upon the death of the income beneficiary. In this appeal, petitioner argues that she has a vested interest in the remainder of the trust, and that the code entitles her to information about the trust and its administration. We agree with petitioner and reverse the order of the probate court.
A vested interest is one that is capable of becoming possessory immediately upon the expiration of the preceding estate. Stevens Mineral Co v Michigan, 164 Mich App 692, 696; 418 NW2d 130 (1987). Our Supreme Court has labeled an interest such as petitioner’s a vested remainder interest subject to defeasance. In re Jamieson Estate, 374 Mich 231, 236; 132 NW2d 1 (1965). The probate court and the trustee have miscast petitioner’s interest in the trust as a contingent interest in the remainder. The trustee relies on two "contingencies”: (1) that petitioner must survive the primary income beneficiary, and (2) that there must be assets left in the trust after the primary beneficiary’s death. These are not conditions that render a remainder interest contingent rather than vested.
A remainder interest vests upon the death of the grantor, not upon the death of the life tenant. In re Hurd’s Estate, 303 Mich 504, 509; 6 NW2d 758 (1942); In re Patterson’s Estate, 227 Mich 486, 489-491; 198 NW 958 (1924). The possibility of the death of the remainderman before the life tenant does not prevent the taking of a vested remainder. Hurd’s Estate, supra; Holmes v Holmes, 215 Mich 112, 117; 183 NW 784 (1921).
A remainder interest that becomes possessory upon the death of the lifetime beneficiary is vested even if the holder of the life interest may invade the principal and has discretion to exhaust the corpus. Broas v Broas, 153 Mich 310, 311-312; 116 NW 1077 (1908). Where the trust provides that the trustee may invade the entire corpus of the estate if necessary to support and provide medical care for the income beneficiary, the persons named as being entitled to the corpus upon the death of the income beneficiary have a vested remainder interest in the corpus of the trust subject to defeasance if the entire corpus is used as described. Glaser’s Elevator & Lumber Co v Lee Homes, Inc, 65 Mich App 328, 331; 237 NW2d 312 (1975).
Thus, petitioner has a vested interest in the remainder subject to defeasance in the event she dies before the income beneficiary or before the trust corpus is depleted. The next question is whether a person with a vested future interest is entitled to information regarding the trust administration under the Revised Probate Code. We hold that she is.
The statute includes holders of both vested and contingent remainder interests in its definition of "beneficiary.” MCL 700.3(2); MSA 27.5003(2). There is no statutory distinction among classes of beneficiaries except in § 814, regarding the trustee’s duty to keep beneficiaries informed. MCL 700.814; MSA 27.5814. The relevant portions of this section state:
(1) The trustee shall keep the presently vested beneficiaries of the trust reasonably informed of the trust and its administration.
(2) Within 30 days after his acceptance of the trust, the trustee shall inform in writing the presently vested beneficiaries and if possible, 1 or more persons who may represent beneficiaries with future interests, of his name and address and of the court in which the trust is registered or probated, and, further, advise the beneficiary that he has the right to request and receive a copy of the terms of the trust which describe or affect his interest and relevant information about the assets and administration of the trust.
(3) Upon reasonable request, the trustee shall provide the beneficiary with a copy of the terms of the trust which describe or affect his interest and with relevant information about the assets of the trust and the particulars relating to the administration.
(4) The trustee shall provide to each presently vested beneficiary a statement of the accounts of the trust annually and on termination of the trust or change of the trustee.
The trustee contends that petitioner is a beneficiary, but not a "presently vested beneficiary.” Consequently, according to the trustee, she is entitled, under subsections 2 and 3, to a copy of the terms of the trust that describe or affect her interest, and the trustee has given that to her. He ignores the provisions requiring that the trustee also give each beneficiary "relevant information about the assets and administration of the trust.” Petitioner is entitled to that information and more.
The term "presently vested beneficiaries” as used in subsections 1, 2, and 4 has not been construed in a reported decision. In subsection 2, the term is used to describe the rights of that class of beneficiaries, seemingly in contrast to the rights of "beneficiaries with future interests.” Further confusion arises from the last phrase of this subsection that uses the bare term "beneficiary” to state that the trustee must inform beneficiaries of their rights to receive a copy of relevant parts of the trust document and information about trust assets and administration. Given that petitioner is a "presently vested beneficiary” with a "future interest” in the trust, it is not clear whether the Legislature intended that she be entitled to full disclosure. Because of this ambiguity, judicial construction of the statute is appropriate. Dep’t of Social Services v Brewer, 180 Mich App 82, 84; 446 NW2d 593 (1989).
In enacting the trust provisions of the Revised Probate Code, the Legislature adopted much of the Uniform Probate Code (upc). See House Legislative Analysis, HB 4475, January 30, 1979, p 10. There are, however, significant differences between the uniform act and the pertinent provisions of Michigan’s statute. In construing an amendment of a statute, we presume that a change in phrasing implies an intent to change the meaning as well. Greek v Bassett, 112 Mich App 556, 562; 316 NW2d 489 (1982). The presumption does not apply in this case because we are concerned with the adoption of a statute from a model act, not an amendment of an existing statute. The principle, however, is useful. The Legislature began with the model act; we may reasonably assume that deviations from the language of that act were deliberate.
We also are bound, in our interpretation of a statute, by the language of the Legislature read in light of previously established and recognized rules of common law. Benge v Michigan National Bank, 341 Mich 441, 452; 67 NW2d 721 (1954). When the Legislature adopts a word or phrase having a settled, definite, and well-known meaning at common law, we must assume that the word or phrase is used with that common-law meaning unless a contrary intent is apparent. People v Covelesky, 217 Mich 90, 100; 185 NW 770 (1921). We construe words and phrases that have acquired a peculiar and appropriate meaning in the law according to that peculiar and appropriate meaning. MCL 8.3a; MSA 2.212(1); Krajewski v Royal Oak, 126 Mich App 695, 697; 337 NW2d 635 (1983).
Section 7-303 of the upc merely parallels § 814 of the Revised Probate Code. The only provision of the model act mandating notification of beneficiaries by the trustee is found in UPC §7-303(a), requiring the trustee to notify "current beneficiaries” of the court in which the trust is registered and of the trustee’s name and address. The term "current beneficiaries” has been defined to include those currently eligible to receive income from the trust.' Bogert, Trusts & Trustees (rev 2d ed), § 961, pp 12-13. Our Legislature substituted the term "presently vested beneficiaries.” That term has a specific meaning in Michigan’s common law. As was discussed earlier, an interest such as petitioner’s in this case has been described as a vested remainder interest subject to defeasance. In two older cases, our Supreme Court referred to such a future interest as a "present vested remainder.” Hogan v Hogan, 102 Mich 641, 643; 61 NW 73 (1894); Mandlebaum v McDonell, 29 Mich 77, 87 (1874).
Thus, assuming that the Legislature’s choice of words was deliberate and in keeping with the common-law meaning of the term, petitioner is a presently vested beneficiary. We also note that the Legislature imposed an affirmative duty on the trustee to provide annual statements of account to eligible beneficiaries, while the upc requires such an account only upon the beneficiary’s request. Furthermore, our code, unlike the upc, requires the trustee to inform beneficiaries of their right to information. Reading these variations from the upc together with the change in phrasing from "current” to "presently vested” beneficiaries, we conclude that our Legislature intended to enlarge the class of beneficiaries entitled to unsolicited information, including annual accounts, from the trustee.
The trustee contends that the trust instrument relieves him of the obligation to account to petitioner. We disagree with the trustee’s interpretation of the provision on which he relies. It requires him to account to the income beneficiary; it does not expressly relieve him of the duty to account to vested remaindermen. In any event, a trust provi sion relieving the trustee of the duty to keep formal accounts does not abrogate the statutory duty to account to the beneficiaries in the probate court. Raak v Raak, 170 Mich App 786, 790; 428 NW2d 778 (1988). Although the terms of the trust may regulate the amount of information that the trustee must give and the frequency with which it must be given, the beneficiary is always entitled to such information as is reasonably necessary to enable him to enforce his rights under the trust or to prevent or redress a breach of trust. 1 Restatement Trusts, 2d, § 173, comment c, p 378.
The probate court based its denial of the petition for supervision on an error of law. Petitioner is a presently vested beneficiary, not a contingent one. She is, therefore, entitled to "relevant information about the assets and administration of the trust” under § 814(2), and to an annual statement of the trust’s accounts under § 814(4). We are unable to determine from the record the specific information petitioner is entitled to or whether there is any basis for the assertions that the income beneficiary has reason to fear for her safety if her identity and other information were disclosed. A remand, therefore, is necessary for the probate court to decide these questions.
Reversed and remanded for further proceedings. We do not retain jurisdiction.
Denise Childress petitioned on her own behalf and as personal representative of the estate of her father, Jimmy Dale Childress, a missing person. Because the residuary trusts for petitioner and her father are substantially identical, we will refer only to petitioner in her individual capacity in our analysis of the issues.
The trustee has also overstated the nature of his discretion to distribute the trust corpus. His discretion is limited by his fiduciary duty to petitioner, whose rights equal those of the income beneficiary. In re Butterfield Estate, 418 Mich 241, 257; 341 NW2d 453 (1983). It is an abuse of a trustee’s discretion to act from an improper, even though not dishonest, motive, such as where he acts because of dislike or disapproval of a beneficiary. 1 Restatement Trusts, 2d, § 187, comment g, p 404. | [
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Sullivan, P.J.
A jury convicted defendant of felonious assault, MCL 750.82; MSA 28.277. Defem dant then pleaded guilty of being an habitual offender, third offense, MCL 769.11; MSA 28.1083. The court sentenced defendant to an enhanced prison term of one to eight years. Defendant appeals as of right, claiming prosecutorial misconduct and failure of the trial court to inform him fully of his rights when taking his guilty plea to the habitual offender charge. We hold that the prosecutor’s remarks during closing argument deprived defendant of a fair trial and we reverse his conviction of felonious assault on that ground. We also reverse his habitual-offender conviction and remand for a new trial on both the underlying and supplemental charges.
Defendant was charged with assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, arising out of a traffic confrontation with the complainant. Each accused the other of cutting him off. Their jockeying for position, hand gestures, and shouting from within their vehicles escalated to the point where they left their cars while stopped at a traffic light. The complainant was a large and admittedly angry man. Defendant was a smaller and admittedly intoxicated man. This volatile combination resulted in defendant swinging a hammer at the complainant, landing a blow to his head.
At trial, defendant offered self-defense and intoxication as his defenses. On direct examination, he testified that he had consumed about half of a fifth of vodka during the two hours just before the occurrence. He also testified that he had a problem with alcohol. On cross-examination, the prosecutor asked a series of questions about his past use of drugs other than alcohol, particularly marijuana and cocaine. Defense counsel objected only after several questions. The court sustained the objection. The prosecutor then questioned defendant about his use of marijuana on the date of the altercation. Defendant said that he shared five or six marijuana cigarettes with two other people over the same time he was drinking the vodka. Defendant also admitted, in response to the prosecutor’s question, that he knew it was illegal to drive his car while intoxicated.
Apparently on the basis of this testimony, the prosecutor argued as follows in rebuttal:
A little bit more about who to believe. Let’s look at the Defendant’s personal credibility, besides the holes in his story. I’d ask you to look a little bit into his character. Now, character alone isn’t enough to convict somebody, but it’s something to consider, the Judge will tell you, when you’re trying to decide whether or not to believe what he’s telling you now that he’s on trial for this serious crime. The Defendant admitted on cross-examination that he thinks nothing of drinking and driving although he knows it’s against the law. Not proof positive of anything, but we know he’ll break the law when it suits his purpose.
He smokes marijuana. He’s admitted that he’s tried cocaine. Again, it doesn’t prove anything in and of itself, but it tells us a little bit about his character. He’ll break the law when it suits his purpose.
A prosecutor may comment upon and suggest reasonable inferences from the evidence. People v Sharbnow, 174 Mich App 94, 100; 435 NW2d 772 (1989). Where, however, evidence of a defendant’s other wrongful acts has been admitted for the limited purpose allowed under MRE 404(b), the prosecutor deprives the defendant of a fair trial in arguing that the jury should consider the evidence as substantive evidence of the defendant’s guilt. People v Haines, 105 Mich App 213, 218; 306 NW2d 455 (1981). See also People v Vaughn, 128 Mich App 270, 272-273; 340 NW2d 310 (1983). It is not proper for the prosecutor to comment on the defendant’s character when his character is not in issue. See People v Fredericks, 125 Mich App 114, 118; 335 NW2d 919 (1983); People v Gregory Williams, 57 Mich App 521, 523, n 1; 226 NW2d 547 (1975).
The prosecutor in this case constructed a grossly improper closing argument out of improper but unobjected-to cross-examination. For want of a defense objection, the cross-examination alone might not have merited reversal; no objection or curative instruction, however, could have obviated the prejudice resulting from the prosecutor’s closing argument.
The defects in the argument are many and obvious. It includes comments on character when defendant’s character was not in issue. It suggests that the jury may convict a person because of his character rather than because of specific conduct. It invokes likely prejudices of the jurors regarding drunken driving and drug use when defendant was charged with a crime unrelated to those transgressions.
The test of prosecutorial misconduct is whether the defendant was denied a fair and impartial trial. People v Foster, 175 Mich App 311, 317; 437 NW2d 395 (1989). The prosecutor in this case went beyond vigorous advocacy and inflamed the prejudices of the jury. See People v Marji, 180 Mich App 525, 538; 447 NW2d 835 (1989). Moreover, the prejudicial remarks were made during rebuttal, when defense counsel had no opportunity to respond. See Haines, supra, p 218. No cautionary instruction could have undone the harm, and defendant was deprived of a fair trial.
We also reverse defendant’s habitual-offender conviction. Generally, a motion to withdraw the plea is a prerequisite to a claim on appeal that the trial court failed to comply with the rules or advise the defendant of his rights in taking a guilty plea. MCR 6.311(C), formerly MCR 6.101(F) (7); People v Osuna, 174 Mich App 530, 532; 436 NW2d 405 (1988). Where, however, the court completely fails to inform the defendant on the record of any of the rights enumerated in MCR 6.302, we may disregard the general waiver rule. People v Richardson, 144 Mich App 616, 621-622; 376 NW2d 167 (1985). The trial court’s brief remarks on the record in this case were nearly identical to those held to require reversal in Richardson, despite the lack of an appropriate motion. Under the circumstances, and because of the necessity for a new trial on the underlying charge, we vacate the habitual-offender conviction and remand for a new trial on the supplemental information in the event defendant is again convicted on the assault charge.
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Shepherd, P.J.
This case presents the question whether the income from a spendthrift trust is subject to postjudgment execution proceedings where the judgment was based upon a claim for legal services that preserved or benefited the interest of the beneficiary of the trust. The trial court held that no postjudgment execution could be had. We hold otherwise and reverse.
On October 25, 1985, defendant Marilyn Wall Obolensky entered into a fee agreement for legal services to be provided by plaintiff law firm, Evans & Luptak. The legal services were in connection with the Albert F. Wall Testamentary Trust, and the agreement provided:
You hereby retain the law firm of Evans & Luptak to represent you in connection with the above matter and to secure the division of the Trust and the sale of Wall Colmonoy Corporation, Wall Colmonoy Limited and Wall Colmonoy (Canada) Inc. Companies.
The agreement further provided:
It is understood and agreed that the law firm will have a lien upon all sums recovered in connection with the above matter for the purpose of securing payment of attorney fees and costs. To effectuate the lien, you agree that we may direct the payer of any sums recovered to place our name on the check along with yours.
The Wall Colmonoy businesses were the primary assets of a marital and residuary trust created by defendant’s father, Albert F. Wall. Evans & Luptak represented defendant in attempting to secure the highest and best offer for the businesses. Eventually, the probate court entered an order directing the sale of the capital stock of the businesses and the funds realized from the sale proceeds were ultimately paid into the trust. The law firm was not responsible for finding the buyer.
The record does not clearly reflect the precise nature of the services performed by Evans & Luptak, however they did not receive payment from defendant and filed suit, which resulted in a default judgment of $26,855.11. The claim of Evans & Luptak that their services were engaged to benefit the defendant’s interest in the trust is not contested.
The trust instrument contains the following paragraph:
Subject always to the express grant of power of appointment to my wife, Christine F. Wall, in Paragraph third above, neither the corpus of any trust created hereby nor the income resulting therefrom while in the hands of my Trustees, shall be subject to any conveyance, transfer or assignment, or be pledged as security for any debt of any beneficiary thereof and the same shall not be subject to any claim of any creditor of any such beneficiary, through legal process or otherwise; any such attempted sale, anticipation, assignment or pledge of any of the funds or property held in any such trust, or the income therefrom, by such beneficiaries or any of them shall be null and void, and shall not be recognized by my Trustees. It is the intention to place the absolute title to the property held in trust and the income therefrom in my Trustees with power and authority to pay out the same only as authroized [sic] hereby.
Evans & Luptak alleged that it is entitled to invoke supplementary proceedings to enforce payment of the default judgment and requested the appointment of a receiver to collect the income that defendant would acquire from time to time from the trust. Defendant as well as the cotrustees and a remainderman argue that the quoted spendthrift provisions of the trust preclude any post-judgment proceedings to enforce payment of the judgment.
1 Restatement Trusts, 2d, § 157, p 328 provides:
Particular Classes of Claimants
Although a trust is a spendthrift trust or a trust for support, the interest of the beneficiary can be reached in satisfaction of an enforceable claim against the beneficiary,
(a) by the wife or child of the beneficiary for support, or by the wife for alimony;
(b) for necessary services rendered to the beneficiary or necessary supplies furnished to him;
(c) for services rendered and materials furnished which preserve or benefít the interest of the beneñciary;
(d) by the United States or a State to satisfy a claim against the beneficiary. [Emphasis supplied.]
In this case, we are called upon to decide whether subsection c applies so that plaintiff may obtain satisfaction of the judgment that is based upon a claim for services rendered that preserved or benefited the interest of the beneficiary.
In Coverston v Kellogg, 136 Mich App 504; 357 NW2d 705 (1984), this Court held that the income from a spendthrift trust can be reached to satisfy a former wife’s claims for alimony and child support. The case adopted with approval and quoted § 157 of the Restatement in its entirety. In an earlier case this Court had expressed the opinion that one of the exceptions to the general rule that the interest of the beneficiary of a spendthrift trust cannot be reached by creditors relates to claims for necessary services rendered to the beneficiary under § 157(b) of the Restatement. In re Sykes Estate, 131 Mich App 49; 345 NW2d 642 (1983). The Michigan Supreme Court has also passed upon the applicability of § 157 of the Restatement and held that the interest of the beneficiary of a trust with a spendthrift clause can be reached to enforce claims of the beneficiary’s wife or child for alimony or support, for necessaries furnished the beneficiary, and to satisfy a claim of the United States or of a state, i.e., under subsections a, b, and d of § 157 of the Restatement. Miller v Dep’t of Mental Health, 432 Mich 426; 442 NW2d 617 (1989).
From the preceding analysis it is clear that the Restatement has been approved by every applicable appellate decision in Michigan since 1983 and that all the subsections of § 157 of the Restatement that were in issue in the cases were adopted with approval by either the Court of Appeals or the Supreme Court. Subsection c, which relates to "services rendered and materials furnished which preserve or benefit the interest of the beneficiary,” has not yet been the subject of an appellate decision. This case presents that opportunity to this Court, and we follow the line of cases that precedes this case and hold that subsection c of § 157 of the Restatement may be invoked by a creditor to pursue postjudgment enforcement proceedings where the claim is based upon the services of a law firm that were obtained by the beneficiary to increase her interest in or improve her position with respect to the income of the trust.
The comment with regard to subsection c of § 157 of the Restatement, p 330, says:
Although a trust is a spendthrift trust or a trust for support, the interest of the beneficiary can be reached in satisfaction of an enforceable claim for services rendered and materials furnished which preserve or benefit the interest of the beneficiary. In such a case the beneficiary would be unjustly enriched if such a claim were not allowed.
The Restatement offers the following illustration:
A bequeaths $100,000 to B upon a spendthrift trust for C. D, A’s next of kin, institutes an action to contest the will, which if successful would result in the destruction of C’s interest under the trust. C employs E, an attorney, to represent him in the action and the will is upheld. E can reach C’s interest under the trust in payment for his services rendered in protecting the interest. [Id.]
This case presents a similar situation. It would constitute unjust enrichment if the trial court were not able to fashion a remedy to enable the attorneys to be paid for their services in enhancing the position of the beneficiary. Accordingly, we remand to the circuit court for the court to apply the above principles in fashioning an appropriate remedy.
The trial judge made his ruling on the basis of an assumption that there could be no postjudgment execution because of the existence of a spendthrift trust. Now that we have found this to be an erroneous assumption, there remain unanswered questions that the trial court did not address:
1. Must the benefit to the interest of the beneficiary be actual or tangible rather than nothing more than good-faith efforts? Is it a benefit to the interest of the beneficiary to have a law firm looking out for her interests during the period of negotiations for the sale of trust property?
2. Is it enough to look at the unanswered complaint that resulted in the default judgment or may the trial court look behind the pleadings to determine whether the services actually performed by the law firm meet the requirements of § 157(c) of the Restatement?
On remand, the court should examine these issues. However, if relief is given to plaintiff, given the fact that the beneficiary in this case has no right to obtain principal, the court may not permit any portion of the trust corpus to be paid to plaintiff. To the extent that the trustees have discretion in paying any amount to the defendant beneficiary, the trial court may not order enforcement of the judgment except with regard to those amounts that the trustees actually authorize as payment to the beneficiary.
Counsel for one of the remaindermen of the trust argues that plaintiff’s claim is barred by res judicata. The argument is made that before the entry of judgment plaintiff tried to enforce its lien in probate court and that relief was denied. Counsel has not given us any information regarding the reasons why the probate court denied relief, but it appears that all that was before the probate court was the attempt to enforce a claim that had not yet been reduced to a judgment. This case involves a judgment and, therefore, the issue before this Court is not the same. Furthermore, the record clearly shows that this issue was not raised in the circuit court. Therefore, we will not address it further.
Plaintiff argues that the trial judge erred in failing to disqualify himself sua sponte following an ex parte communication with defendant. The record shows that the judge stated that he was contacted by defendant and that nothing of substance was discussed. Apparently, defendant telephoned the judge and asked him to "do justice.” The transcript indicates that neither party moved to disqualify the judge at the time and that, immediately after the judge disclosed the conversation, the parties proceeded to argue the case. The procedure to obtain disqualification of a judge is found in MCR 2.003. Because plaintiff did not raise the issue regarding disqualification in the trial court, we will not address that issue further.
Plaintiff further argues that the trial court erred in denying its motion for appointment of a receiver. Given the fact that the trial court denied plaintiff’s request for all postjudgment enforcement proceedings, we will not attempt at this point to prescribe a specific remedy. We would prefer to have the trial court address the appropriate remedy in the first instance after having the benefit of our decision.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. | [
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R. B. Burns, P. J.
Plaintiff, a subcontractor, agreed to furnish labor and materials to the principal contractor in completing a construction contract with the State Highway Department. In ac cordance with state law the principal contractor obtained a surety bond from the defendant.
Plaintiff brought this suit against defendant-surety to recover the unpaid balance on the contract between plaintiff and its defaulting principal contractor. One of the controversies at the trial level concerned the effect of plaintiff’s failure to serve notice upon the State Highway Department within a statutorily-required 60-day period.
MCLA § 570.102 (Stat Ann 1970 Eev § 26.322) provides:
“In the case of a subcontractor, he shall within 60 days after furnishing the last material or supplies or performing the last work covered by his subcontract, serve a written notice in duplicate upon the board of officers or agents contracting on behalf of the state * * * , that he is a subcontractor for the doing of some part of such work * * * and that he relies upon the security of the bond by this act required to be given by the principal contractor, and the said board of officers or agents shall within 10 days thereafter furnish a copy of such notice to the sureties for the principal contractor.”
Nevertheless plaintiff’s motion for summary judgment was granted on the following grounds set out by the trial judge:
“Defendant, a paid surety had timely notice of plaintiff’s claim and * * * defendant would suffer no injury or damage if held liable to the plaintiff because of the fact that the State of Michigan has retained funds under the prime contract with the Trapp Construction Company [the principal contractor] which would indemnify the defendant from any injury or loss.” (Emphasis supplied.)
Plaintiff’s evidence as to timely notice consisted of two letters. A letter dated August 23,1970 from plaintiff to defendant recited that in August of 1969 plaintiff had last given materials and or services on the contract. The second letter, dated November 20, 1969, and from the State Highway Department, notified plaintiff that it had received plaintiff’s claim and had forwarded a copy to the defendant.
The Court in People, for use of Wheeling Corrugating Co v W L Thon Co, 307 Mich 273, 277 (1943) made compliance with the statutory notice provision “a condition precedent to recovery on the bond”.
Reversed and remanded for entry of judgment in accordance with this opinion.
T. M. Burns, J., concurred.
MCLA § 570.101 (Stat Ann 1970 Eev § 26.321). | [
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Doctoroff, P.J.
Plaintiffs appeal as of right from a circuit court order granting summary disposition in favor of defendants. Plaintiffs claim that the trial court erred in granting summary disposition of their negligence claim, in ruling that plaintiffs could not recover attorney fees as damages, in ruling that plaintiffs’ claim of slander of title was time-barred, and in dismissing their claim alleging abuse of process against defendant Chicago Title Insurance Company. We affirm.
Plaintiffs own land in Eveline Township, Charlevoix County, Michigan. On October 1, 1970, Claud and Edith Gill, who owned land adjacent to plaintiffs’ property, sold their land to Alex and Jean Pomnichowski under a land contract. On October 24, 1977, the Gills gave the Pomnichowskis a warranty deed to the property, which also conveyed to the Pomnichowskis an easement across plaintiffs’ property. However, plaintiffs never granted an easement to the Gills or their predecessors in title. The Pomnichowskis’ title was insured by defendant Chicago Title after a title examination was performed by Chicago Title’s agent, defendant Charlevoix Abstract & Engineering Company.
In the fall of 1985, plaintiffs discovered that the Pomnichowskis were cutting trees on plaintiffs’ property. Plaintiffs obtained an injunction preventing the further destruction of their property, and on October 28, 1985, plaintiffs commenced suit against the Pomnichowskis to clear the cloud on their title. As required by the title insurance contract between Chicago Title and the Pomnichowskis, Chicago Title defended the Pomnichowskis in the suit brought by plaintiffs. In May 1987, plaintiffs and the Pomnichowskis settled the suit by stipulation and agreement, and the Pomnichowskis quitclaimed to the plaintiffs whatever right they claimed to have in the easement and paid for the damage to the trees.
On August 11, 1988, plaintiffs filed this suit against defendant Chicago Title in the Oakland Circuit Court. The complaint alleged that Chicago Title had negligently insured the Pomnichowskis’ title when they should have discovered the illegal easement, thereby causing plaintiffs to incur legal expenses of $29,000 to clear the title to their property. The second count of plaintiffs’ complaint alleged abuse of process by Chicago Title in vigorously defending the Pomnichowskis in the prior suit. Plaintiffs alleged that Chicago Title knew that its position was indefensible, but that it hoped to use its superior economic power to prolong the litigation and thereby force plaintiffs to abandon the suit.
Chicago Title moved for summary disposition on October 3, 1988, pursuant to MCR 2.116(C)(8) and (10). Oakland Circuit Judge James S. Thorburn granted partial summary disposition with regard to the claim of abuse of process.
After Judge Thorburn’s retirement, the suit was transferred to Oakland Circuit Judge Edward Sosnick. On June 27, 1989, plaintiffs amended their complaint by leave granted, adding defendant Charlevoix Abstract and adding the allegation of slander of title.
On September 26, 1989, Judge Sosnick transferred the suit to the Charlevoix Circuit Court, finding venue to be proper there. Both defendants moved for summary disposition of all counts of plaintiffs’ complaint, pursuant to MCR 2.116(C)(7), (8), and (10). The Charlevoix Circuit Court granted defendants’ motions and, in an order dated February 23, 1990, dismissed all counts of plaintiffs’ amended complaint.
Plaintiffs first claim that the trial court erred in granting summary disposition of their negligence claim. Plaintiffs argue that the trial court erred in ruling that defendants owed no duty to plaintiffs because plaintiffs had not relied upon the title insurance policy.
A motion for summary disposition based on MCR 2.116(C)(8) tests the legal sufficiency of the claim by the pleadings alone. Terrell v LBJ Electronics, 188 Mich App 717, 719; 470 NW2d 98 (1991); Pawlak v Redox Corp, 182 Mich App 758, 763; 453 NW2d 304 (1990). The court must accept the factual allegations as true, along with any inferences that may be drawn from the facts. Id. The motion should be granted only when the claim is so unenforceable as a matter of law that no factual development could possibly justify a recovery. Id. In a negligence action, the motion is properly granted if it is determined, as a matter of law, that the defendant owed no duty to the plaintiff. Terrell, supra; New Hampshire Ins Group v Labombard, 155 Mich App 369, 372; 399 NW2d 527 (1986).
The elements of a negligence claim are (1) duty, (2) general standard of care, (3) specific standard of care, (4) cause in fact, (5) legal or proximate cause, and (6) damage. Moning v Alfono, 400 Mich 425, 437; 254 NW2d 759 (1977). "Duty is essentially a question of whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor’s part for the benefit of the injured person.” Id., pp 438-439. The question of duty is for the court to decide. Id., p 438.
Plaintiffs claim that they were harmed by defendants’ action in negligently searching and issuing the title insurance policy to the Pomnichowskis and that defendants owed plaintiffs a duty of care because they were within the class of those who foreseeably could be injured by defendants’ negligent conduct.
Whether an abstract company or a title insurance company owes a duty of care to anyone in the class of those who foreseeably could be injured by the negligence of the abstract company or the title insurance company has not been determined in Michigan. In an analogous situation, however, in Williams v Polgar, 391 Mich 6, 21-23; 215 NW2d 149 (1974), the Michigan Supreme Court held that an abstracter could be liable under a theory of negligent misrepresentation where the abstracter negligently performed a title search. Our Supreme Court determined in that case that a cause of action for negligent misrepresentation ran to all those whom the abstracter reasonably could have foreseen as relying upon the accuracy of the abstract. Id., p 22.
In Friedman v Dozorc, 412 Mich 1, 28; 312 NW2d 585 (1981), though factually distinct from this case, our Supreme Court held that reliance is an appropriate factor to be considered when determining whether a duty is owed a third party by a professional. Similarly, this Court in Law Offices of Stockler v Rose, 174 Mich App 14, 35-36; 436 NW2d 70 (1989), stated with respect to the tort of negligent misrepresentation, and in reliance upon Williams, that the third parties to whom a duty is owed are limited to those parties whom the actor reasonably could foresee as relying upon the information provided.
In this case, Chicago Title insured the Pomnichowskis’ title after a title search was performed by Charlevoix Abstract. The Pomnichowskis apparently relied upon the title search and policy, and believed that they had an easement across plaintiffs’ property. As a result, plaintiffs incurred legal expenses to remove this cloud from their title. Plaintiffs do not claim to have had any contractual relationship with defendants, nor do plaintiffs claim to have relied upon the title policy issued by defendants.
In view of Williams, Friedman, and Stockler, we conclude that the trial court correctly held that defendants owed no duty to plaintiffs because plaintiffs did not rely on defendants’ allegedly negligent misrepresentations. The grant of summary disposition was proper.
Plaintiffs’ second claim is that the trial court erred in ruling that they could not recover attorney fees as damages.
Generally, attorney fees are not recoverable in litigation, either as costs or as an item of damages, unless expressly allowed by statute or court rule. Matras v Amoco Oil Co, 424 Mich 675, 695; 385 NW2d 586 (1986); DeWald v Isola (After Remand), 188 Mich App 697, 699; 470 NW2d 505 (1991). An exception to this rule permits a plaintiff to recover as damages from a third party the attorney fees the plaintiff expended in a prior lawsuit the plaintiff was forced to defend or prosecute because of the wrongful acts of the third party. Warren v McLouth Steel Corp, 111 Mich App 496, 508; 314 NW2d 666 (1981). See also Yamaha Motor Corp, USA v Tri-City Motors & Sports, Inc, 171 Mich App 260, 281; 429 NW2d 871 (1988). Where there is no evidence to support a claim that a third party’s wrongdoing caused the prior litigation, recovery of attorney fees under this exception is improper. Id.
Plaintiffs argue that they should be able to recover the attorney fees incurred in prosecuting the prior action against the Pomnichowskis because that action was necessitated by defendants’ wrongdoing, namely, the negligent misrepresentation that the easement was properly conveyed. Having determined that summary disposition of plaintiffs’ negligence claim was proper, we conclude that the trial court correctly ruled that plaintiffs could not recover attorney fees as damages. Plaintiffs cannot show that defendants’ wrongdoing caused the prior litigation.
Plaintiffs’ third claim is that the trial court erred in ruling that their claim of slander of title was barred by the one-year statute of limitations found in MCL 600.5805(7); MSA 27A.5805(7).
When reviewing a motion for summary disposition under MCR 2.116(C)(7), we must accept all well-pleaded allegations as true and construe them most favorably to the plaintiff. Haywood v Fowler, 190 Mich App 253, 256; 475 NW2d 458 (1991). If no facts are in dispute, the issue whether the claim is barred by statute is one of law for the court. Executone Business Systems Corp v IPC Communications, Inc, 177 Mich App 660, 665; 442 NW2d 755 (1989).
The cause of action for slander of title occurs when there is a false and malicious statement made to disparage a person’s title to real estate. Glieberman v Fine, 248 Mich 8, 13; 226 NW 669 (1929). The elements of slander of title are (1) falsity of the statement made, and (2) malice. Stanton v Dachille, 186 Mich App 247, 262; 463 NW2d 479 (1990).
The question of what statute of limitations applies to slander of title actions has not been answered in Michigan. Plaintiffs argue that the three-year limitation period in MCL 600.5805(8); MSA 27A.5805(8) applies. The trial court ruled that the one-year limitation period in MCL 600.5805(7); MSA 27A.5805(7) applies.
MCL 600.5805; MSA 27A.5805 provides, in pertinent part:
(1) A person shall not bring or maintain an action to recover damages for injuries to persons or property unless, after the claim first accrued to the plaintiff or to someone through whom the plaintiff claims, the action is commenced within the periods of time prescribed by this section.
(7) The period of limitations is 1 year for an action charging libel or slander.
(8) The period of limitations is 3 years after the time of the death or injury for all other actions to recover damages for the death of a person, or for injury to a person or property.
Although there is authority to the contrary, we conclude that the majority of jurisdictions have adopted the view that, in the absence of a statute expressly referring to actions for slander of title, the statute of limitations applicable to actions for libel and slander applies to actions for slander of title. See Lehigh Chemical Co v Celanese Corp of America, 278 F Supp 894 (D Md, 1968); Norton v Kanouff, 165 Neb 435; 86 NW2d 72 (1957); Old Plantation Corp v Maule Industries, Inc, 68 So 2d 180 (Fla, 1953); Woodard v Pacific Fruit & Produce Co, 165 Or 250; 106 P2d 1043 (1940); Bush v McMann, 12 Colo App 504; 55 P 956 (1899). In Buehrer v Provident Mutual Life Ins Co, 123 Ohio St 264; 175 NE 25 (1931), the Ohio Supreme Court rejected the plaintiffs contention that his claim of slander of title was controlled by the section of the Ohio General Code that provided that an action for injury to property or for trespass upon real property must be brought within four years after the action accrued. Instead, the court held that the plaintiffs claim was controlled by the section of the code that provided that actions for libel and slander must be brought within one year after the action accrued. The court stated:
That section comprehends all actions for slander or for libel, and is not limited, in terms, to slander or libel against the person only; nor is it confined to any particular kind of slander — slander of the person rather than of property; nor can we see any legislative purpose in making such a distinction. [Id., p 271.]
We, too, can see no reason to make a distinction between an action alleging defamation of title to property and an action alleging defamation of the person.
We agree with the view adopted by the jurisdictions mentioned above and hold that the one-year period of limitation for an action charging libel or slander applies to an action for slander of title. Plaintiffs’ complaint was filed more than one year after they settled their lawsuit against the Pomnichowskis. See Chesebro v Powers, 78 Mich 472, 479; 44 NW 290 (1889). Therefore, the trial court properly ruled that plaintiffs’ claim of slander of title was barred by the statute of limitations.
Plaintiffs’ last contention is that the trial court erred in dismissing their claim alleging abuse of process against Chicago Title.
Initially, we note that defendants’ argument that plaintiffs failed to preserve this issue for review because they did not file a separate claim of appeal from the November 21, 1988, order is without merit. Where a party has claimed an appeal from a final order, the party is free to raise on appeal issues related to other orders in the case. Dean v Tucker, 182 Mich App 27, 31; 451 NW2d 571 (1990). We also reject Chicago Title’s assertion that plaintiffs abandoned this issue because they did not reallege the claim of abuse of process in their first amended complaint.
The trial court dismissed plaintiffs’ claim of abuse of process because it believed that plaintiffs could not allege more than one claim with regard to the same set of facts. The trial court erred in ruling that plaintiffs were not entitled to allege more than one claim. MCR 2.111(A)(2)(b). Nevertheless, we affirm the dismissal of plaintiffs’ claim of abuse of process. This Court will not reverse a trial court’s decision where it reached the correct result, but for the wrong reason. McCaslin v Hartford Accident & Indemnity, 182 Mich App 419, 421; 452 NW2d 834 (1990).
To recover pursuant to a theory of abuse of process, a plaintiff must plead and prove (1) an ulterior purpose, and (2) an act in the use of process that is improper in the regular prosecution of the proceeding. Friedman, supra, pp 30-31. In Vallance v Brewbaker, 161 Mich App 642, 646; 411 NW2d 808 (1987), this Court described a meritorious claim of abuse of process as a situation where the defendant has used a proper legal procedure for a purpose collateral to the intended use of that procedure. The Court further stated that there must be some corroborating act that demonstrates the ulterior purpose. Id. A bad motive alone will not establish an abuse of process. Id.
In this case, plaintiffs alleged in their original complaint that Chicago Title abused the legal process by vigorously presenting groundless defenses in defending the Pomnichowskis in their earlier lawsuit. However, plaintiffs did not allege an act by Chicago Title that demonstrates that the defenses raised were raised with the alleged improper ulterior motive. Thus, the dismissal of plaintiffs’ claim of abuse of process was proper.
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Per Curiam.
On August 27, 1966, defendant, while he was seated behind the wheel of a parked car, was approached by two uniformed Detroit police officers who asked him to move the car out of a no-parking zone. Upon his failure to do so, the officers demanded to see defendant’s operator’s license and vehicle registration. The testimony regarding subsequent events was conflicting in many respects, but all testified that defendant produced his license within four minutes by tearing out the bottom of the glove box where it was located and to which defendant did not have a key.
Defendant was tried and convicted of failure to display an operator’s license to a uniformed police officer upon demand by a jury in the Recorder’s Court of Detroit, Traffic and Ordinance Division. Defendant appealed this conviction and this Court reversed and remanded for a new trial.
In ruling on defendant’s appeal from his first conviction this Court held that it was erroneous for the trial judge to charge the jury that as a matter of law, under the aforementioned circumstances, defendant did not have his driver’s license in his immediate possession; that being a question for the jury to decide.
Defendant was again tried for failure to display his license, convicted, and, again, appeals. Of the several issues raised by defendant on this appeal, we consider only one: whether there was sufficient evidence on which the jury could base a finding of guilt beyond a reasonable doubt.
At the second trial, the judge charged the jury that where, as here, no time limit or standard is set by statute, the standard to be applied is whether defendant performed the required act within a “reasonable” time. We agree with the trial court’s interpretation of the statute, however we do not feel that the evidence here adduced is sufficient to support the jury’s finding.
The defendant’s operator’s license was locked in the glove compartment, and defendant did not have the key in his possession. He ripped out the bottom of the glove compartment and produced the license. One of the police officers testified that two to four minutes elapsed between demand and display of the license; the defendant testified that the time span was no more than four minutes. Given the location of the license, defendant did produce it within a “reasonable” time.
Reversed.
MCLA 257.311; MSA 9.2011: “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.”
People v Moore, 12 Mich App 519 (1968).
We have examined this Court’s records in the prior case, supra; this issue was not before the Court at that time. | [
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Doctoroff, J.
The people appeal as of right from an order of Berrien Circuit Judge John T. Hammond quashing an information charging defendant, Benton Harbor Police Officer Marvin Fiedler, with involuntary manslaughter, MCL 750.329; MSA 28.561, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). The prosecution argues that the circuit court erred in ruling that MCR 6.110(E) is invalid, that the district court did not abuse its discretion when it bound over defendant for trial, that the fleeing-felon rule does not prohibit prosecution of defendant, that the circuit court erred in ruling that the district court erred in admitting evidence regarding the shooting , policy of the Benton Harbor Police Department, and that the appropriate remedy was to remand to the district court. We reverse and reinstate the information.
This case arises out of the shooting death of Norris Maben by defendant on January 18, 1990.
According to the testimony presented at the preliminary examination, Benton Harbor Police Department Dispatcher Karen Singleton received a telephone call from an anonymous informant that Terry Jenkins had been spotted in the vicinity of 700 Pavone Street. Jenkins was wanted by the Benton Harbor Police Department on an open murder charge. The informant described Jenkins as a black male wearing a brown brimmed hat, black sweatpants, white tennis shoes, a blue denim jacket with a fur collar, and with braids in his hair. No information was given regarding Jenkins’ height, weight, or complexion.
Singleton gave an initial report of this call to defendant in person at the police station, and then followed up with numerous radio communications with defendant as he was en route to Pavone Street. She estimated she spoke with defendant more than five times by radio during this interval.
Marie Kimble testified that she was watching television in her upstairs apartment at 755 Pavone Street when an acquaintance of hers, Sam Buchanan, knocked at her door and asked to use her telephone. Buchanan was accompanied by a black male whom she did not know, but who was later identified as Norris Maben. Maben was wearing a blue brimmed hat, two coats, one black and one blue, blue sweatpants, and blue tennis shoes. Shortly thereafter, Kimble admitted defendant after he knocked and requested entry. Defendant asked Buchanan for identification, and Buchanan said he did not have any. Buchanan also told defendant that nobody came in with him. Meanwhile, Maben, who was in an adjoining room outside defendant’s vision, said to Kimble, "You ain’t seen me,” but she responded that she would not hide anyone, whereupon Buchanan walked into an adjacent bedroom and Maben entered the kitchen, where defendant was standing. Defendant asked for identification and Maben responded that he did not have any and, when asked his name, replied "Norris Maben.” As defendant extended his hand toward Maben, Maben ran from the kitchen, through the living room, and back to a bedroom, where he leaped outside through the glass of a closed window. Neither Kimble nor defendant witnessed the actual leap because the window through which Maben jumped was outside their vision from the kitchen. Kimble testified that there had been no body contact between defendant and Maben.
Defendant followed Maben’s path through the apartment and outside Kimble’s vision, after which she heard defendant yell "halt” three times, then heard three rapid shots, after which defendant came back through the kitchen and went downstairs and into the back yard. When she went to the rear of her apartment and looked outside, she saw Maben lying face down on the ground in the back yard. Kimble testified that defendant never told the occupants of the apartment why he was there or for whom he was looking, never arrested or charged them with a crime, and never drew his handgun while in her presence.
The pathologist who performed the autopsy testified that a single bullet entered the left front area of Mayben’s chest and came out his lower back. Laboratory tests indicated the presence of a small amount of cocaine and suggested the presence of marijuana in Maben’s body.
Officers who investigated the shooting testified that no weapons were found near the body. A set of keys was found under Maben’s right arm. Defendant told one officer at the scene that he thought Maben was Jenkins, but was wrong.
The defense called as its sole witness Lt. Gary Ruhl, a Berrien County deputy sheriff, who took a statement from defendant on January 25, 1990. According to defendant’s statement, Karen Singleton informed him that Jenkins had been spotted on Pavone Street. He proceeded to Pavone Street and, as he was driving, saw two men come around the front corner of the house at 755 Pavone Street. The shorter of the two men was wearing a small-brim hat and dark clothing, which defendant felt fit the description he had been given. The men went up on the porch. Defendant looked away and, when he turned back around, the men were gone.
Defendant knocked at the door of the house and a child, who admitted him, stated in response to defendant’s inquiry that two men had gone upstairs. Defendant went upstairs, knocked at the door of the upper apartment, and was informed by the woman who opened it that there was no one else on the premises. When informed that a child downstairs had indicated that two men entered the apartment, the taller man came out and stated to defendant that he was the only man there. However, defendant inquired regarding the man with the small-brimmed hat. At that point, Maben entered the kitchen from another room and, in response to defendant’s questions, stated his name was Maben and denied having any identification on him. Defendant reached for Maben’s coat pocket to see if he had a wallet, but Maben pushed defendant to the point that defendant was completely off balance. Maben then ran out of the room and dove through the window. Defendant went to the window, saw Maben go off the edge of the roof of a lower part of the building and run diagonally across the back yard toward an alley, and, while standing at the window, ordered him to halt. Maben then turned around and moved as if reaching for something at his hip, whereupon defendant drew his handgun and fired three quick shots at Maben. Defendant believed that Maben was, in fact, Jenkins and thought he was reaching for a weapon.
Defendant stated he did not hear Maben tell Kimble to say that Maben was not there and did not recall receiving additional details regarding Jenkins’ description while en route to Pavone Street.
The examining magistrate bound over defendant to circuit court for trial, stating that "the evidence exists to find that probable cause exists that both of the offenses charged which are not cognizable by this court have been committed and that the Defendant committed the same.”
The circuit court granted defendant’s motion to quash the information by written opinion entered on December 26, 1990, on the ground that the magistrate never found that a crime was committed, as required by MCL 766.13; MSA 28.931. The court also noted that in People v Couch, 436 Mich 414; 461 NW2d 683 (1990), the Michigan Supreme Court held that the common-law fleeing-felon rule was still in force in Michigan and that the magistrate did not have the benefit of the Couch opinion.
In a supplemental opinion issued on January 2, 1991, and in an opinion filed on February 25, 1991, which denied the prosecution’s motions to disqualify the circuit judge, to remand, and to reconsider, the circuit court elaborated on its reasons for granting the motion to quash. The circuit court ruled that admission of evidence of the shooting policy of the Benton Harbor Police Department was error and that the magistrate had utilized an improper standard of proof by finding probable cause to believe the offenses charged were committed. The circuit court found that MCR 6.110(E) conflicts with MCL 766.13; MSA 28.931, and that the statute was controlling. The circuit court also found, after reviewing the evidence presented at the preliminary examination and considering defendant’s fleeing-felon rule defense, that no crime was committed.
The people’s first argument on appeal is that the trial court erred in ruling that MCR 6.110(E) is invalid because it attempts to effect a substantive change in Michigan law by authorizing binding over a defendant upon the examining magistrate’s finding of probable cause to believe the crime charged has been committed.
Section 13 of the preliminary examination statute, MCL 766.13; MSA 28.931, states:
If it shall appear to the magistrate at the conclusion of the preliminary examination either that an offense has not been committed or that there is not probable cause for charging the defendant therewith, he shall discharge such defendant. If it shall appear to the magistrate at the conclusion of the preliminary examination that a felony has been committed and there is probable cause for charging the defendant therewith, the magistrate shall forthwith bind the defendant to appear before the circuit court of such county, or other county having jurisdiction of the cause, for trial.
MCR 6.110(E) provides, in relevant part:
If, after considering the evidence, the court determines that probable cause exists to believe both that an offense not cognizable by the district court has been committed and that the defendant committed it, the court must bind the defendant over for trial.
The trial court found that there is a conflict between the statute and the court rule, in that the court rule attempted to change substantive law and, therefore, that the court rule is invalid.
We must first determine whether the statute and court rule conflict. In other words, does the court rule attempt to effectuate a change in Michigan law.
Although the language of the statute and the court rule differ, we hold that MCR 6.110(E) does not attempt to change Michigan law and does not conflict with MCL 766.13; MSA 28.931.
The statute does not define the burden of proof applicable to the determination whether a crime has been committed. We recognize that the Michigan Supreme Court, in dicta, has indicated that a defendant should not be bound over if the prosecution merely proved that there was probable cause to believe the crime charged was committed. See People v Paille #2, 383 Mich 621, 628; 178 NW2d 465 (1970); People v Asta, 337 Mich 590, 609-610; 60 NW2d 472 (1953); People v Matthews, 289 Mich 440, 444; 286 NW 675 (1939). That two of these three cases are cited in the committee commentary to the proposed court rule indicates that the Supreme Court was aware of them at the time the court rule was proposed and promulgated. The court rule and the commentary are the clearest indicator of the Supreme Court’s current view regarding this issue.
Const 1963, art 6, § 5 grants the Supreme Court authority to establish general rules regulating practice and procedure in the courts of this state. The staff comments regarding MCR 6.110(E) state:
Subrules (E) and (F) implement MCL 766.13; MSA 28.931. Although the language the rules use in describing the bind-over and discharge standards is different than that used in the statute, no substantive difference is intended. The other provisions in these subrules are also consistent with existing law.
The language of MCR 6.110(E) was originally proposed as MCR 6.107(E). 422A Mich 27 (1985) (advance sheets only). The committee note commentary that follows the proposed rule is most enlightening:
Subrule (E). This subrule imposes the traditional probable cause requirement for a bindover decision. MCL 766.13; MSA 28.931, however, states that the defendant should be bound over if it appears "that a felony has been committed and there is probable cause for charging the defendant therewith. . . .” Taken literally, this might imply that the judge must be certain that an offense has been committed, although no court has suggested such a standard. A number of cases have suggested, however, that the standard of cause pertaining to the crime is higher than that pertaining to the defendant’s connection with the crime. People v King, 412 Mich 145, 152-153; 312 NW2d 629 (1981); People v Doss, 406 Mich 90, 100-101; 276 NW2d 9 (1979); People v Asta, 337 Mich 590, 609-610; 60 NW2d 472 (1953). No case has attempted to define this "higher” standard.
Arguably the cases have misread the statute. MCL 766.13; MSA 28.931 uses the same formulation for the discharge rule that it uses for the bindover rule. "If it shall appear to the magistrate . . . either that an offense has not been committed or that there is not probable cause for charging the defendant therewith, he shall discharge such defendant.” No one interprets this to require that a judge find as a fact that a crime was not committed before he or she can discharge a defendant. Yet some have read the same words in the bind-over standard as requiring the judge to find as a fact that a crime was committed before he or she can bind the defendant over for trial.
In any event, all fact finding is subject to some burden of persuasion, but neither the statute nor the cases define that burden with respect to the crime. The subrule reflects the belief that probable cause is the appropriate burden. Certainly no one would require proof beyond a reasonable doubt at the preliminary examination. Clear and convincing evidence likewise is too high a burden for a screening procedure to employ. Standards below this come so close to the probable cause formulation that to attempt distinctions is to split hairs without appreciably furthering the interests of either party.
The subrule’s formulation is consistent with FR Crim P 5.1(a) and with the great weight of state authority. Over 30 states require probable cause as to both the offense and the defendant. Approximately thirteen states have provisions similar to MCL 766.13; MSA 931 [sic]. Even in these states, however, it is not clear that the provisions are strictly construed. For example, in Drury v Burr, 107 Ariz 124, 125; 483 P2d 539 (1971), the Arizona Supreme Court interpreted such a provision as requiring only that "a person of ordinary caution or prudence conscientiously . . . entertain a reasonable suspicion that a public offense has been committed . . . . ” (Emphasis added.) (Subsequently, Arizona adopted a rule, like subrule (E), requiring "probable cause to believe that an offense has been committed and that the defendant committed it. . . .” Ariz R Crim P 5.4[a].). [422A Mich 32-33.]
The staff comments regarding MCR 6.110(E) and the committee commentary regarding proposed MCR 6.107(E) clearly indicate that MCR 6.110(E), although its language differs from the language of MCL 766.13; MSA 28.931, does not attempt to change the burden of proof applicable to the determination whether a crime has been committed, but rather defines the applicable burden. We perceive no conflict between the statute and the court rule. The circuit court erred in ruling that a conflict exists.
The people’s second and third arguments are interrelated. The second argument is that the district court did not abuse its discretion when it bound over defendant for trial. The third argument is that the fleeing-felon rule did not prohibit prosecution of defendant.
In reviewing a district court’s decision to bind over a defendant, a circuit court should not substitute its judgment for that of the district court and may reverse only if it appears from the record that there was an abuse of discretion. People v Lopez, 187 Mich App 305, 308; 466 NW2d 397 (1991). On review of a circuit court’s decision to quash an information, this Court must determine whether the district court abused its discretion in binding over the defendant. Id. At the preliminary examination, the prosecution need not establish guilt beyond a reasonable doubt. People v Hill, 433 Mich 464, 469; 446 NW2d 140 (1989). However, evidence regarding each element of the crime or evidence from which the elements may be inferred must exist. Id. When the evidence conflicts or raises a reasonable doubt concerning guilt, there are questions for the trier of fact, and the defendant should be bound over. Id.; People v Cotton, 191 Mich App 377, 384; 478 NW2d 681 (1991).
The elements of involuntary manslaughter, as applied to the facts of this case, are (1) that the defendant caused the death of Maben, (2) that the death resulted from the discharge of a firearm, (3) that, at the time the firearm was fired, defendant was pointing it at Maben, (4) that, at that time, defendant intended to point the firearm at Maben, and (5) that defendant caused Maben’s death without lawful excuse or justification. CJI2d 16.11.
The circuit court ruled that no crime was committed, because it found that defendant’s killing of Maben was justified under the common-law fleeing-felon rule.
In People v Whitty, 96 Mich App 403, 411; 292 NW2d 214 (1980), this Court pointed out that, under the common law, the use of deadly force in making an arrest can be divided into two categories: (1) the use of deadly force when the arresting person is met with force from the party to be arrested, and (2) the use of deadly force when necessary to prevent the person being arrested from fleeing. The Court further stated:
It also appears that the common law imposed a further distinction between police officers and private persons when the matter escalated beyond the issue of making the arrest to the question of when deadly force could be used to make the arrest. While a private citizen could arrest a person who was suspected of committing a felony that in fact occurred, deadly force was justified only if the felony actually occurred and the person against whom the force was used was in fact the person who committed the felony. A police officer was justified in acting on the basis of reasonable belief at both levels of inquiry. [Id., p 411. Citation omitted. Emphasis in original.]
In determining that defendant’s killing of Maben was justified under the common-law .fleeing-felon rule, the circuit court found that defendant reasonably believed that Maben was Jenkins and that defendant was justified in using deadly force against Maben. In so doing, the circuit court resolved conflicts in the testimony and substituted its judgment for that of the district court. Whether defendant was justified in believing that Maben was Jenkins and in using deadly force against Maben is a question for the trier of fact. Accordingly, we hold that the circuit court erred in granting defendant’s motion to quash the information. Considering the evidence presented at the preliminary examination, the district court did not abuse its discretion in binding over defendant for trial.
Plaintiff’s fourth argument is that the circuit court erred in ruling that the district court erred in admitting evidence of the shooting policy of the Benton Harbor Police Department.
In Washington v Starke, 173 Mich App 230; 433 NW2d 834 (1988), this Court held that evidence of the shooting policy of the Benton Harbor Police Department was inadmissible because it could not supersede the Michigan common-law fleeing-felon rule. Although Washington was a civil case, its holding is equally applicable to a criminal case. Therefore, the circuit court correctly held that evidence of the shooting policy of the Benton Harbor Police Department was improperly admitted at the preliminary examination. However, the circuit court erred in ruling that admission of the evidence required that the information be quashed. The introduction of incompetent evidence at the preliminary examination can be harmless error. People v Hall, 435 Mich 599; 460 NW2d 520 (1990); People v Usher, 121 Mich App 345, 349; 328 NW2d 628 (1982). There was sufficient competent evidence presented to support binding over defendant for trial.
The prosecution’s final argument is that, because the circuit court quashed the information on the basis of the technical and procedural errors it concluded were committed by the district court, the appropriate remedy was to remand to the district court. Having determined that the circuit court erred in quashing the information, discussion of this issue is unnecessary.
Reversed.
The prosecution has not raised, and at oral argument expressly abandoned, any challenge of the quashing of the felony-firearm information. | [
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Memorandum Opinion.
Defendant, Murray Spencer, was convicted of manslaughter, MCLA 750.321; MSA 28.553, and sentenced to imprisonment for 5 to 15 years.
An examination of the record and briefs discloses no prejudicial error denying Spencer any substantial right.
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Per Curiam.
Defendant was convicted of the crime of rape. MCLA 750.520; MSA 28.788. He appeals as of right from a sentence of 10 to 15 years entered pursuant to that conviction.
Defendant contends that the evidence presented at trial was not sufficient to establish the crime of rape beyond a reasonable doubt. Additionally, the defendant contends that the prosecution did not demonstrate the requisite diligence required when a missing endorsed res gestae witness is not produced at trial.
A review of the record reveals that sufficient evidence was presented at trial to support the court’s determination that the defendant was guilty of rape beyond a reasonable doubt. See People v Jeter, 21 Mich App 158 (1970).
A review of the record also demonstrates that the prosecution established that due diligence was exercised in attempting to produce the missing res gestae witness. Diligence is a matter within the discretion of the trial court and is subject to being overturned on appeal only for clear abuse. People v Alexander, 26 Mich App 321 (1970).
Affirmed. | [
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Per Curiam.
This appeal challenges the granting of a summary judgment to defendants. GCR 1963, 117.2(3).
The parties are competitive abstractors in Cheboygan County, Michigan. From 1953 through October 1967, plaintiff alleges they paid a per-page copy fee to the Register of Deeds. Plaintiff claims the county realized a profit in excess of $6,000. In October 1967, pursuant to an agreement with defendant Register of Deeds, plaintiff discontinued using county help and materials and moved in their own equipment and employees. The regulations at this time were changed from a fee to a no-fee basis.
On September 21, 1970, the Register of Deeds allowed defendants Mark Larwood Company to com menee photocopying all of the old records without charge. On August 12, 1971, defendant Cheboygan Abstract Company was incorporated for the purpose of abstracting. Defendants supplied the camera, paper, and help to complete the work.
Plaintiff maintains that this procedure constituted a jury question as to whether there was a breach of duty. Denial of equal protection to plaintiff in an identical business and to the taxpayers because of unfair benefits and burdens resulting from the no-fee copying are, according to plaintiff, questions of fact for jury consideration. The relief prayed for in the complaint was for an injunction until defendants shall pay the county a reasonable price for the records, at least commensurate with that paid by the plaintiff for the same records.
On appeal from the summary judgment in favor of defendants, plaintiff contends that questions of fact were presented requiring jury deliberation and decision and that a claim for relief was stated.
In order to prevail, it is necessary that plaintiff show that the defendant Register of Deeds has a clear legal duty to act in the manner requested and that plaintiff has a clear legal right to the performance of the specific duty. Pillon v Attorney General, 345 Mich 536 (1956); Mardiros v Secretary of State, 11 Mich App 541 (1968); Hill & Valley Land Corp v Genesee County Board of Road Commissioners, 29 Mich App 505 (1971); Loche v Macomb County, 31 Mich App 22 (1971).
The duty sought to be enforced by this action was not created by law. Plaintiff admits that MCLA 565.551; MSA 26.791, makes no mention of.fees. It is then argued that the absence of specific authority to charge a fee is not conclusive for the proposition that no fee may be charged. The underlined word indicates discretion. The statute does not say that a fee cannot be charged nor does it make the charging of oiie mandatory. There is no clear legal duty to collect fees nor does plaintiff have a clear legal right to such performance.
We conclude that plaintiff’s failure to establish and prove this basic contention leads to affirmance of the trial court. Plaintiff did fail to state a claim upon which relief could be granted. GCR 1963, 117.2(1). No genuine issue as to any material fact was presented. GCR 1963,117-2(3).
Summary judgment for defendants affirmed. Costs to appellees. | [
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Targonski, J.
Defendant, Joseph Kozlow, was tried and convicted of murder in the first-degree on November 10, 1969. Defendant’s application for leave to file a delayed appeal was granted by this Court January 22, 1971.
The fact of this case as developed by the prosecution at the trial on the basis of investigation by the State Police are as follows: sometime in 1968 the State Police received a tip from one Jack McKinley, a prisoner in Marquette Prison, that a crime had been committed some six years previously, the facts of which had been disclosed to him. According to this story, the defendant had related to McKinley the story of the murder and burial of one James Shannon. McKinley reported that the defendant informed him that in June 1962, while sitting behind Shannon in Shannon’s car, in a remote area of Arenac County, defendant had shot Shannon in the back of the head with a single-shot, single-barrel shotgun. Defendant and his brother, Edward Kozlow, then buried Shannon in the woods and drove the car to a river to wash the blood out. A few days later, on a visit to the grave site, defendant and his brother noticed that the grave had been disturbed by animals, so they buried the body at a different site and poured lime in the grave. Defendant also told McKinley that he had buried the shotgun somewhere on his father’s farm, but when it was plowed up later he had cleaned it and taken it back into his father’s house. The motive for the crime allegedly was the desire of the defendant and his brother to secure the engine from Shannon’s car and the money in his wallet. They drove the car around for a few days and then removed the engine from the car and ultimately sold it to a junkyard. They endeavored to disassemble the car with an ax before burying it on the property of an old man near Twining. According to McKinley, the defendant had threatened the old man with reprisal if he said anything about the incident. Further he indicated that the old man had recently moved to Pontiac to live with his daughter. Sometime after the alleged incident relatives of Shannon inquired as to his whereabouts but the defendant claimed that he was ignorant thereof and further claimed that Shannon had disappeared owing him $5, which the relatives paid him.
For six years subsequent to the events related, until Jack McKinley revealed this story, both the crime and the victim’s body remained buried. With meticulous care in a seven-month investigative effort the State Police managed to piece together the evidence and developed the testimony substantiating the information they had received.
The State Police located 60-year-old Lawrence Ecker in Saginaw, living with his daughter. They had previously lived in Arenac County. Mr. Ecker testified that the defendant had introduced him to the deceased Shannon while the latter was still alive and that defendant had later shown him where he had buried Shannon’s body. He further testified that the defendant and his brother, while in his backyard, had taken an engine from a car and that afterwards the car had been stripped down, chopped with an ax, burned, and hauled away.
One Melvin Spencer partially corroborated the testimony of Lawence Ecker. He testified that defendant had shown Mr. Ecker and himself the spot where he had buried the body. Allegedly defendant then threatened both of them with dire consequences if they dared to tell anyone. Spencer further testified that defendant had told him that it was Shannon’s mistreatment of the defendant’s sister that caused him to kill him.
Dennis Chrivia, a part-time deputy sheriff in 1962, testified that on June 16,1962, he had issued a traffic ticket to defendant who had produced the license and registration of one James Shannon.
Ecker led the State Police to a place that defendant had allegedly indicated to him as the burial place of a body. Here the police found the remains of a human body, later positively identified as that of James Shannon, in a shallow grave. The skull, bearing a large hole in the rear and a fracture “not compatible with life,” was taken from this grave and later introduced at trial without objection, as were the bones of a left leg and feet bearing evidence of a healed fracture matching one known to have been sustained by Shannon. Also introduced with out objection were seven photographs, in color, of the grave site, some of them showing traces of calcium carbonate, a substance found in lime.
A single-shot, single-barrel shotgun was discovered in the home of defendant’s brother, Valentine Kozlow. This weapon was admitted into evidence at the trial over objection by the defendant.
The defense in its presentation at the trial maintained that some person' other than defendant, to-wit, his uncle by marriage, had the motive, temperament, and opportunity to murder James Shannon. The uncle, referred to by the defense, had been institutionalized and had committed suicide four years prior to trial. The defendant’s aunt, the wife of said uncle, testified for defendant.
Defendant raises five issues on appeal which he contends constituted error. A careful examination of such contentions follows.
I. Was it error to admit into evidence the skull and bones of the deceased and photographs of the grave site?
Defendant now objects to the admission into evidence of the skull, leg, and foot bones, and photographs of the grave site on the grounds that these items were so prejudicial to a fair trial as to require a new trial even absent objection. The admission of evidence however lies within the sound discretion of the trial court and we will not disturb such exercise of discretion unless a clear abuse is demonstrated. People v Gill, 31 Mich App 395 (1971); People v Hoffman, 24 Mich App 244 (1970); People v Surles, 29 Mich App 132 (1970). The general rule concerning admissibility of evidence was recently reiterated in People v Surles, supra, in which this Court said:
“In Michigan the general rule of admissibility seems to be ‘that it is admissible if helpful in throw ing light upon any material point in issue.’ People v Becker, 300 Mich 562, 565 (1942). This rule has been refined somewhat as stated in a thorough opinion by Judge J. H. Gillis in People v Turner, supra (p 130) as one disallowing relevant photographic evidence ‘if its possible prejudicial effect outweighs its probative value.’ ” (Footnote added.)
In examining the instant case we find that the trial court did not abuse its discretion in allowing the skull and bones, along with pictures of the grave site, to be introduced into evidence. The leg and foot bones aided in proving the identity of the deceased although they were actually not necessary to the establishment of such identity. The skull and pictures of the grave site corroborated Jack McKinley’s testimony. Together this evidence helped to establish the corpus delicti of the crime. In addition, because of the poor quality of the photographic exhibits, they could not be considered gruesome or inflammatory. See People v Falkner, 36 Mich App 101 (1971). The skull and bones were apparently washed and cleaned before being shown to the pury. The photographs show leaves, dirt, a whitish substance, and only indistinguishably a half-buried skeleton. Clearly, under this situation, there was little, if any, prejudicial effect to outweigh the probative value of this evidence.
II. Was it error to deny defendant’s motion to quash the information as to murder of the first and second degree on the ground that no evidence existed to support a finding of premeditation other than the defendant’s extrajudicial confession?
It is the defendant’s contention that there was no evidence introduced at trial going to the issue of premeditation or malice save the extra-judicial con-
fession introduced through the testimony of the witness Jack McKinley. Further, defendant contends that the corpus delicti of first-degree murder, including premeditation and malice must be established by evidence independent of the defendant’s extra-judicial confession in order to support the charge. We cannot fully agree. The long-established rule is that the corpus delicti of a crime may not be proved by a naked extrajudicial confession. People v Ranney, 153 Mich 293 (1908); People v Eding, 292 Mich 46 (1939); People v Lane, 49 Mich 340 (1882). But, it is also well established that the corpus delicti of the crime of first-degree murder consists only of proof of the death and the existence of a criminal agency as its cause. People v Mondich, 234 Mich 590 (1926); People v Coapman, 326 Mich 321 (1949). Thus, death and the existence of criminal agency as its cause, the corpus delicti of the first-degree murder, only need be proved independently to make extrajudicial confessions admissible as to the elements of premeditation and malice. People v Mondich, supra. Furthermore, once the corpus delicti has been established, the elements of premeditation and malice may be inferred from circumstantial evidence. People v Griner, 30 Mich App 612 (1971); People v Crawford, 30 Mich App 221 (1971).
In this case proofs were introduced at trial indicating that a buried skeleton had been found, the place where it was found, the condition in which it was found, that the skeleton was that of James Shannon, and that he died under conditions indicating a criminal agency as the cause of death, before Jack McKinley’s testimony was introduced as the extrajudicial confession of the defendant. The corpus delicti of the charged homicide was sufficiently established by proofs independent of the extrajudicial confession. Inferences from such proofs, in conjunc tion with the extrajudicial confession, established such premeditation and malice as was necessary to support the charge of first-degree murder.
III. Was an adequate foundation laid to admit the shotgun into evidence at trial?
The prosecution introduced a 16-gauge shotgun into evidence, holding it out as the murder weapon. Defense counsel objected to its introduction on the grounds that no proper foundation had been laid for its admission. Although we find no Michigan case law directly on point, a look at 22A CJS, Criminal Law, § 712, pp 961-963 will offer guidance:
“To warrant the admission in evidence of an instrument or weapon as the one with which the crime was committed, a prima facie showing of identity and connection with the crime is necessary and sufficient ; clear, certain, and positive proof, or positive identification, is generally not required. Objections to the lack of positive identification, or to the sufficiency of the evidence identifying the article in question or connecting it with the accused or with the crime, such as the objection that a considerable length of time elapsed after the crime before the weapon or instrument was found, or that in the interval third persons may have had access thereto, or that it was tampered with, go to the weight, or probative force, of the evidence rather than to the admissibility of the article.” See also People v Burrell, 21 Mich App 451, 456 (1970).
Expert testimony was introduced in the instant case to establish presence of metallic fragments in the skull of the deceased, plus a large hole in the rear thereof; also, Jack McKinley testified that defendant had told him he had procured a shotgun from his father’s house to use in killing the deceased. Defendant further told McKinley, according to his testimony, that at first he had attempted to dispose of the gun by burying it on his father’s property, but that it had been plowed up subsequently, so that he had taken the gun back into the father’s house, and thereafter, had not attempted to dispose of it again. When asked if the defendant had told him what kind of shotgun he had used, McKinley responded: “As I recall, he told me it was a single-barrel 12-gauge”. But State Police detective Robert F. Ward then testified that when he spoke with Jack McKinley the shotgun had not been identified by gauge, and that pursuant to the information obtained by his investigation of the case he had sought a single-barrel, single-shot shotgun with a pitted barrel.
The jury heard the above testimony, including Jack McKinley’s description of the shotgun, as he stated on the witness stand, as a 12-gauge. Presumably, they were aware of the fact that the gun admitted into evidence was a 16-gauge shotgun. Consequently, we feel that any discrepancy between the testimony and the shotgun offered affected the credibility and not its admissibility and a proper foundation was then laid for admission of the shotgun. The members of the jury ascribed such weight as they chose, or believed proper, to the shotgun in evidence.
It should also be noted that, for the first time on appeal, defendant asserts that before the shotgun could be introduced into evidence, prosecution is required to show that it be in the exact same condition as at the time of the crime. Such an issue was never raised below, and therefore, it will not be heard on appeal. People v Kennedy, 22 Mich App 524 (1970); People v Ray Clifton Smith, 20 Mich App 243 (1969).
IV. Did the trial judge commit reversible error in his instruction to the jury by commenting on the con dition and character of the shotgun allegedly used by defendant, comments allegedly originating from testimony excluded from evidence?
Defendant finds fault with that part of the trial court’s statement of the people’s theory that follows:
“It is the claim of the people, and from information that was received from Jack McKinley, that the said J ames A. Shannon was shot with a shotgun. It was the testimony of Mr. McKinley that the gun that was said to have been used by the defendant was a .16 gauge [sic], or was a .12 gauge shotgun, and some question here now as to whether or not if a gun was used, on J ames A. Shannon, whether it was .12 gauge or a .16 gauge shotgun. The shotgun that was introduced here, and claimed to be the gun that was picked up at the brother, I believe, or uncle, of Mr. Kozlow, was a .16 gauge, single shot shotgun.”
Defendant contends that this trial court characterization of McKinley’s testimony indicates that the witness equivocated regarding the gauge of the shotgun defendant had informed him he had used. In fact, McKinley never stated that a 16-gauge shotguri was used, but testified that it was a 12-gauge shotgun. Even though we construed this as a misstatement by the trial court, no attempt to correct same was made at the trial. This issue was not even raised by an appropriate objection at trial, nor in the first motion for a new trial. Further, the trial court carefully explained to the jurors that they were the sole judges of the facts:
“Now, I want to explain to you that you are the judges of the facts; regardless of what Mr. Sperry or Mr. Maki, or myself might say to you, this is not the facts in this particular case.”
The trial court re-emphasized this instruction twice more. To further emphasize this point, the trial court made the following statement toward the end of his jury instructions:
“Your decision should be based solely upon the facts and evidence presented to you from the witness stand.”
Thus, after viewing all the statements made by the trial court to the jury, any possible irregularity in the statement of the position of the prosecution was, at most, error which does not approach “manifest injustice”. People v McClure, 29 Mich App 361, 369 (1971); People v Doane, 33 Mich App 579 (1971).
Defendant also finds fault with a later part of the trial court’s statement of the people’s theory that follows:
“It is the claim of the people in this case that the gun that they claim was used in this offense, or alleged offense, was single barrel shotgun; that it had a broken stock, and that gun was introduced here into evidence. It was pitted and it had a broken stock, the only question was whether or not it was a .12 gauge or a .16 gauge shotgun that is alleged to have been used.”
Defendant contends that the trial court, in this statement, disclosed certain testimony, if not affirmatively excluded from jury consideration, then at a minimum, simply not presented before the jury at trial. It is true that the statements made to the police by the defendant were excluded by a Walker hearing and therefore inadmissible at trial. However, any of the admissions made in prison to Jack McKinley were admissible. The admissions testified to by the witness Jack McKinley placed before the jury the fact that the alleged murder weapon had been buried and subsequently dug up. The jury also knew that a 16-gauge shotgun, which had a pitted barrel and broken stock, was admitted as people’s exhibit #25. But the jury was never specifically informed whether or why the police sought a shotgun with a pitted barrel and a broken stock.
The defendant proposed no additions or corrections to the instructions to the jury after the trial court had concluded them. In such an instance, the test on appeal is found in People v McClure, supra, p 369:
“At the close of the charge both counsel indicated their satisfaction with the court’s instructions. A review of the instructions shows that the court gave a fair statement of the position of the parties as to the facts and the law applicable thereto. The test on review of a criminal case is not whether there were some irregularities, but whether the defendant had a fair trial. People v Mosley, 338 Mich 559 (1953); People v Boyles, 11 Mich App 417 (1968). That standard also applies to a jury charge. People v Wichman, 15 Mich App 110 (1968).”
Taken as- a whole, we do not feel that the trial court’s instructions to the jury were at all misleading. The court’s summation as to the people’s contentions were not wholly accurate, but as previously mentioned, the jury was adequately instructed that it alone was the trier of the facts. Therefore, no error can be assigned on this issue.
V. Did the trial court commit reversible error by allowing certain hearsay statements before the jury; or if admissible under the state of mind exception, was it reversible error in failing to instruct the jury as to the limited use?
Defendant’s final contention stems from the examination of witness Jack McKinley. Defendant, on cross-examining McKinley, attempted to impeach his testimony with a letter McKinley had written to his own brother in Jackson Prison suggesting that he was prepared to do all he could to help the defendant. Further examination of McKinley however brought out testimony that McKinley’s brother had told McKinley that he had been threatened by the defendant, who was also at Jackson Prison, in an apparent attempt to have McKinley change his story or not testify. Defendant claims that the testimony of what McKinley’s brother had related to him amounted to hearsay evidence, and consequently inadmissible at trial. Defendant further claims that if the testimony was admissible as an exception to the hearsay rule, the trial court erred in failing to give a limiting instruction to the jury regarding the purpose of McKinley’s testimony concerning letters received from his brother. We disagree with defendant’s contentions. The controversial testimony here was admissible as an exception to the hearsay rule. The state of mind exception to the hearsay rule is stated as follows: “Whenever an utterance is offered to evidence the state of mind which ensued in another person in consequence of the utterance, it is obvious that no assertive or testimonial use is sought to be made of it, and the utterance is therefore admissible, so far as the hearsay rule is concerned”. Wigmore on Evidence, 3d ed, § 1789, p 235. The point of such testimony was not to show that defendant had actually threatened Jack McKinley’s brother in Jackson Prison, but to explain why McKinley, in response, had thereafter written his brother telling him that he would change his story on the witness stand. McKinley’s state of mind when he wrote the letters thus became an issue when defendant presented the letters into evidence. From this, the jurors were asked to infer a motive of pacification. Certainly, the prosecution’s attempt to rehabilitate its witness was both appropriate and admissible into evidence. Defendant raised the issue and now must live with it. See People v Jones, 293 Mich 409 (1940); People v Freeman, 32 Mich App 321 (1971).
The trial court in this case did not give, nor was it requested to give, a special instruction as to the limited purpose for which this testimony was to he used; nor was an objection made for the failure to include a limiting instruction. Absent such an objection, this Court has often held a defendant has waived his rights to object for the first time on appeal. GCR 1963, 516.2; People v Anderson, 13 Mich App 247 (1968); People v Stevens, 25 Mich App 181 (1970); People v Dermartzex, 29 Mich App 213 (1970). Further support is found in People v Phillips, 385 Mich 30 (1971). In Phillips, supra, the trial court had admitted photographs and a description of the appearance of the defendants, at the time of their arrest, into evidence for the purpose of showing their state of mind which the jury was entitled to consider as to the issue of intent. On appeal the Court stated:
“The fact that the trial judge did not instruct the jury that this evidence could be considered solely for that purpose [to show defendants’ state of mind] was not error since there was no request for a limiting instruction.”
Thus, based upon numerous authority, since defendant made no timely objection or request he may not now claim error in the instructions.
After carefully reviewing all the issues properly before this court we find no reversible error.
Affirmed.
All concurred.
MCLA 750.316; MSA 28.548.
17 Mich App 123 (1969). | [
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Memorandum Opinion.
Defendant was tried and convicted of manslaughter and appeals. A motion to affirm has been filed by the people.
Upon examination of the briefs and record it is manifest that the question sought to be reviewed is so unsubstantial as to need no argument or formal submission.
Motion to affirm granted. | [
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Memorandum Opinion.
Defendant was found guilty by a jury of assault with intent to rob while armed, MCLA 750.89; MSA 28-.284, and assault with intent to commit great bodily harm less than murder, MCLA 750.84; MSA 28.279.
An examination of the reeord and briefs discloses no prejudicial error.
Affirmed. | [
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Memorandum Opinion.
Defendant-appellant was found guilty by a jury of assault with intent to do great bodily harm less than the crime of murder, was sentenced to 6-1/2 to 10 years imprisonment, and he appeals.
An examination of the record and briefs discloses no prejudicial error.
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Van Valkenburg, J.
Defendant Genesee County Parks and Recreation Commission undertook to develop the Holloway Reservoir Regional Park. While the park, as planned, will eventually contain some 7200 acres lying in Genesee and Lapeer Counties, at the time of trial only 3060 acres were under the control of the commission.
Plaintiff Holloway Citizens Committee of Lapeer and Genesee Counties, Inc. is a nonprofit corporation organized to maintain the values of its members’ property and to promote an attractive environment for the residents of the Holloway Reservoir area.
While much of the land of the plaintiffs is planned to eventually be made part of the park, the advertising prepared and circulated by defendant commission erroneously conveyed the impression that the private land was already under public control. As a result of this impression, there was a sizeable increase in trespassing and vandalism by the visitors thereby attracted. Plaintiff corporation and the constituent members sought injunctive relief and sought to have the contemplated development of the park terminated. The trial court granted injunctive relief to insure that defendants would take all steps necessary to allow plaintiffs to peacefully enjoy their properties; however the court did not grant the plaintiffs’ claims that the park project should be terminated or the claim that they had been deprived of their property without compensation. Prom the adverse rulings, plaintiffs appeal.
Plaintiffs have raised a number of questions involving the statutory basis upon which the actions of the commission, in undertaking the park project, is ostensively predicated. These arguments are so lacking in merit that they need not be discussed here. The crux of the argument below, and the only question of merit here, is whether the plaintiff property owners have suffered a loss, because of the actions of defendants, without receiving compensation therefor as required by law.
The evidence, as would be expected, was far from uniform. Some witnesses claim that values were decreasing, and that this would continue because of the crowds visiting the area, the lack of home con struction, the threat of future condemnation, and the difficulty of securing building permits. On the other hand, evidence was furnished that new houses were being built, owners had suffered no losses, and, in fact, they have the advantage of the park and lake, just as does the g’eneral public,
Would the plaintiffs be entitled to compensation even though the evidence offered by them was entirely true and correct?
Counsel have provided this Court with no cases from Michigan on this subject. However, the uniqueness of the issue leads us to an analysis of the decisions from other jurisdictions which have faced a similar question.
We find, generally speaking, that damages may be awarded if there is direct and consequential injury resulting from the public improvement, especially when that injury complained of applies to one property as opposed to that suffered from the whole community. See 11 Words and Phrases, Damages to Property, pp 64-72.
A case of considerable interest and frequently quoted is one in which the owner claimed damages because of the fact that his property was located in close proximity to a cemetery. The Court in City of Winchester v Ring, 312 Ill 544, 552-553; 144 NE 333, 336 (1924), stated:
“The injury complained of must be actual, susceptible of proof, and capable of being approximately measured, and must not be speculative, remote, prospective, or contingent. To warrant a recovery the damage must be different in kind from that sustained by the people of the whole neighborhood. If it differs only in degree from that suffered in common by the people of the neighborhood, the injury is not within the provision of the Constitution.
# # *
“The right to damages, as we have seen, must be based on the ground that a right of property has been disturbed, and cannot be awarded for an injury to the convenience or feelings of the owner.”
Further elucidation on this point can be found in 26 Am Jur 2d, Eminent Domain, § 163, pp 834-835:
“Moreover, it is generally agreed that the damage clause of the state constitutions has no application to the depreciation of the market value of a parcel of land caused by the establishment of some public building or other public undertaking in close proximity thereto, when there is no physical injury to the property or impairment of any right appurtenant thereto, and the public use is not of such a character as would have constituted a nuisance at common law and given rise to an action by an adjoining owner in the absence of statutory protection.”
This authority further states that the above rule has been applied to the establishment of a cemetery, fire engine house, water tower, jail, hospital, school and playground.
An additional claim of the plaintiffs is that the threat or talk of possible future condemnation proceedings lowered the property values and that the damages therefor should be determined by a jury. The trial court correctly held that the services of such a body could be employed if and when any such actions should be undertaken. This assertion pales further into insignificance when the rule is applied as found in 29A OJS, Eminent Domain, § 135, p 537:
“The promulgation and publicizing of plans do not constitute a taking of the property even though such publicity hinders a sale of the property.”
We have carefully reviewed the record, briefs, and oral arguments of counsel and conclude that neither the issues herein discussed nor the other issues raised provide meritorious grounds for reversal. This Court has repeatedly held that it will not substitute its judgment for that of the trial court sitting without a jury unless the conclusions are clearly erroneous. Such is not the case here. GCR 1963, 517.1 as amended; Jinkner v Town & Country Lanes, Inc, 10 Mich App 596 (1968).
Affirmed. No costs allowed.
All concurred. | [
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Danhof, J.
Plaintiffs are the owners of approximately 15 acres of land in the City of Livonia. In March 1969, the property was zoned, to allow multiple dwellings or apartment houses. In March 1969, petitions were filed with the city clerk, pursuant to the Charter of the City of Livonia, to amend the zoning ordinance of the City of Livonia. The initiatory petitions were found to be in proper form and to meet the requirements of the city charter of the defendant city, and subsequently, on September 29, 1969, at a special election the zoning amendment was approved. The effect of the zoning ordinance was to prohibit the multiple dwellings on the plaintiffs’ property. Thereafter, plaintiffs commenced suit in the Wayne County Circuit Court requesting injunctive relief, mandamus, and- declaratory and summary judgments. The trial judge found that the case involved purely a legal issue, with no facts being in dispute, and granted a declaratory judgment to the plaintiffs declaring the ordinance adopted by the initiatory petitions to be invalid. The trial court determined the instant case to be controlled by the decision of this Court in Elliott v City of Clawson, 21 Mich App 363 (1970).
Both parties concede. that if this case is controlled by Elliott, supra, the trial judge should be affirmed. Defendants, however, have made a vigorous argument that the decision in Elliott, supra, is incorrect and that this panel should not follow the decision reached in Elliott.
The one factual difference in the instant case as compared to Elliott, supra, is that Elliott dealt with the power of referendum as contained in the home rule act and the Charter of the City of Clawson, while the instant case deals with the power of initiative as contained in the home rule act and the Charter of the City of Livonia. In Elliott, supra, this Court stated at p 366:
“Even in jurisdictions in which the power of initiative and referendum on local legislation has been constitutionally reserved, defendants’ seem ingly logical argument has clearly been rejected with respect to the power of initiative.”
In Elliott, supra, this Court at p 367 quoted with approval the following:
“ ‘ “The initiative law and the zoning law are hopelessly inconsistent and in conflict as to the manner of the preparation and adoption of a zoning ordinance. The zoning act is a .special statute dealing with a particular subject and must be deemed to be controlling over the initiative, which is general in its scope.” ’ Dewey v Doxey-Layton Realty Co, 3 Utah 2d 1; 277 P2d 805 (1954), citing Hurst v City of Burlingame, 207 Cal 134; 277 P 308 (1929).”
We have carefully examined what was said in Elliott, supra, and are of the opinion that the reasoning and rationale contained therein applies to the instant case.
Affirmed, no costs a public question being involved.
All concurred.
MCLA 117.41; MSA 5.2082. | [
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Memorandum Opinion.
Defendant was convicted of carrying a concealed weapon, and appeals. The people have filed a motion to affirm.
Upon examination of the briefs and record, it is manifest that the questions sought to be reviewed are so unsubstantial as to need no argument or formal submission.
Motion to affirm granted. | [
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Per Curiam.
Defendant was convicted in Calhoun County Circuit Court on his plea of guilty to the charge of escape from jail through the use of violence. MCLA § 750.197c (Stat Ann 1971 Cum Supp § 28.394 [3]). His motion to withdraw his guilty plea and for a new trial was denied by the circuit court. Defendant appeals of right.
Defendant argues that the circuit court judge failed to properly inquire into the circumstances of the plea pursuant to GCR 1963, 785.3 and MCLA § 768.35 (Stat Ann 1954 Rev § 28.1058). Defendant also contends that the circuit judge erred in not informing him that he could be subject to prosecution under the recidivist statutes.
The withdrawal of a guilty plea after conviction is within the trial judge’s discretion. People v. Vasquez (1942), 303 Mich 340. In accepting a guilty plea, a trial judge may consider the preliminary examination transcript in determining a factual basis for the plea. People v. Bartlett (1969), 17 Mich App 205. Our examination of the arraignment and preliminary hearing convinces us that a sufficient factual basis for the plea existed. Defendant’s second contention is also without merit. A trial judge has no duty to inform an accused of possible ancillary consequences of his guilty plea. People v. Dunn (1968), 380 Mich 693.
Affirmed. | [
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Memorandum Opinion.
Defendant Caver was convicted of breaking and entering a building with intent to commit larceny, MCLA 750.110; MSA 28.305, was sentenced to four to ten years in prison, and now appeals.
An examination of the record and briefs discloses no prejudicial error.
Affirmed. | [
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Memorandum Opinion.
Defendant pleaded guilty to assault with intent to rob being armed and he appeals. A motion to affirm has been filed by the people.
CJpon 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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J. H. Gillis, J.
Plaintiff, Canvasser Custom Builders, Inc., previously brought an equitable action to foreclose a mechanic’s lien arising from services rendered as a general contractor for the construction of a nursing home owned by defendant Service Investment Company. Alex Seskin, sole stockholder of said company, and Muriel Seskin, his wife, were joined as defendants as plaintiff believed that the Seskins had some interest in the real estate upon which the lien was sought. The trial court concluded that the written notations made on July 27, 1962, were not intended by the parties to represent their total agreement, but, instead, an oral agreement made on the same date embodied the entire contract. Though proofs established that defendants were indebted to plaintiff in the sum of $32,-677.51, since the judgment of lien could not exceed the amount stated in the “statement of account and lien,” plaintiff was allowed a security only in the sum of $23,585. Defendant’s motion for a new trial was denied.
On appeal to this Court we sustained the trial judge’s ruling regarding the parol evidence issue but reduced the amount of lien to $21,085. Canvasser Custom Builders, Inc v Seskin, 18 Mich App 606 (1969). Defendant’s motion for rebearing in this Court was denied as was its application for leave to appeal to the Supreme Court.
Defendant then filed a motion with the trial court to be relieved from judgment and to correct judgment by reducing the amount of the lien to $7,000. This motion was denied and an order was entered -releasing to plaintiff garnisheed funds, which had been deposited with the county clerk, in the amount of $21,085 plus interest, costs and attorney fees. From this denial defendant filed an application for leave to appeal to this Court, which was denied on July 19, 1971.
While that application was still pending, plaintiff commenced this present cause of action against Alex Seskin and Service Investment Company as codefendants in order to collect the amount of the principal obligation over and above the satisfied lien judgment. Defendants made a motion for acceler ated judgment of dismissal on the basis that the prior lien judgment barred the present cause of action by the doctrine of res judicata. This motion was denied on September 13, 1968. An application for leave to appeal from the denial was filed with this Court and the application was denied. Plaintiff then filed a motion for summary judgment in this contract action while defendants filed a motion for summary judgment of dismissal. The lower court granted plaintiff’s motion and gave judgment in the amount of $11,409.36 against both Alex Seskin and Service Investment Company (thereby denying defendants’ motion by implication). Defendants now appeal from this summary judgment.
Two issues are raised on appeal: (1) whether the prior judgment on the mechanic’s lien action bars the plaintiff from pursuing this present contract action through the application of the doctrine of res judicata; (2) whether plaintiff by his amended complaint in the equitable suit waived his right to bring a contract action on any sum above the amount for which the lien was sought.
A mechanic’s lien is a security for the underlying indebtedness. It gives the lienor an interest, in rem, in the property that he has participated in improving to the extent of the enhancing value of his material and labor. Its essential purpose is to protect those who have the right to assert the personal claim for indebtedness by giving them an additional remedy. In giving this statutory remedy, the law does not deprive one of the fundamental right it was developed to aid — an action on the contract.
MCLA 570.22; MSA 26.302 provides:
“Except as herein otherwise expressly provided, nothing in this act contained shall be construed to preivent any creditor in any such contract from maintaining an action thereon at common law in like manner as if he had no lien for the security of his debt.”
In F M Sibley Lumber Co v Wayne Circuit Judge, 243 Mich 483, 485 (1928), the Court adopted the following rule:
“A mechanic’s lien is separate and distinct from the debt on which the lien is based, and, while it is recognized that the lienor cannot have more than one satisfaction for the debt due him, the weight of authority is that the lienor may proceed to enforce his lien and simultaneously bring an action to recover a personal judgment for the amount due. The enforcement of the lien is a cumulative remedy provided by statute, and an incidental accompaniment of the contract, which may be pursued in connection with ordinary remedies.” (See also 57 CJS, Mechanic’s Liens, § 266, p 874.)
The mechanic’s lien proceeding is one essentially in rem, F M Sibley Lumber Co v Wayne Circuit Judge, supra; Prather Engineering Co v Detroit, Flint & Saginaw Railway, 152 Mich 582 (1908). Foreclosure is against property which has been enhanced by the value of the mechanic’s services. The action, of course, stems from the contract but is directed primarily at property rather than the person who contracted for the services.
If there had been no satisfaction of the lien judgment, plaintiff could have brought an action on the contract and obtained a personal judgment for the same amount for which he was given a security interest. Cavalluzzo v Diamond, 119 Misc 645; 197 NYS 855 (1922). However, in this case a judgment was rendered on the mechanic’s lien foreclosure which only partially satisfied the total contract debt. This action is merely for the excess over the mechanic’s lien judgment to the limit of the contract obligation. The real question presented is whether, when the authorities speak of a plaintiff being entitled to but “one satisfaction”, this means only a satisfaction of the entire contract obligation or may it also mean a satisfaction of a partial lien judgment.
The problem was discussed in 50 CJS, Judgments, § 680, p 126, which stated:
“The creditor can have only one satisfaction, whether he obtains it in proceedings on the debt or on the mortgage security, although a decree of foreclosure satisfied by payment has been held to be no bar to a suit on the mortgage securities to recover a sum not included in such decree. So where, in replevin to recover mortgaged personalty, the amount of the debt was found, the fact that defendant satisfied the judgment by surrendering the property and paying the costs was held not to render the judgment a bar to recover the balance of the debt after foreclosing the lien.”
In the foreclosure action the court made a finding as to the total amount of the debt owed by the defendants. However, the excess for which this suit was brought was not included in the lien judgment. Hence, it was entirely proper to enter a judgment in this action for the excess of the debt over the amount' of the prior partial satisfaction of the debt. Defendants should not be allowed to avoid their contract obligations through the. use by the plaintiff of a remedy which was designed to further protect him. A'mechanic’s lien is not a substitution or a novation of the debt but rather a security interest given to aid in satisfaction of the debt.
Defendants further argue that plaintiff, having only a single cause of action, violated the rule against splitting his damages. While it is true that one having a single cause of action must ask for his total damages in a single suit, the rule does not apply in this case.
We refer to 1 CJS, Actions, § 103(c)(6), p 1324, 1325, which states :
“Although * * * there can be but one satisfaction of the amount of the debt, a principal debt or obligation with some other obligation as collateral security therefor, gives rise to a separate cause of action on each obligation on which different actions may be brought, and judgment on any one of which * * ' * does not bar an action on the other as long as any part of the principal indebtedness remains unsatisfied.
“Unless provided otherwise by statute it is generally held that the right to recover a personal judgment for a debt secured by a lien and the right to have a foreclosure of that lien are severable and may be made the subject matter of two distinct causes of action.”
In Netting Co v Touscany, 247 Mich 279, 282, (1929), the Supreme Court of Michigan declared:
“A common-law action to recover a personal judgment and an equitable proceeding to enforce a mechanic’s lien are concurrent remedies, and either may be brought while the other is pending.”
See also, Michigan National Bank v Martin, 19 Mich App 458, 462 (1969); Battle v Battjes, 274 Mich 267 (1936).
Defendants’ final argument arises out of the following clause in plaintiff’s amended complaint to his foreclosure action: “Plaintiff hereby waives claim to any sum in excess of $23,585 that being the sum claimed in the statement of account heretofore filed in said cause”. They contend that this amounted to a waiver of any sum due on the contract above the amount for which the lien was sought. The plain import of the language is that there was only a waiver regarding any further amount on the mechanic’s lien claim. Cf. Spicer v Dugrey, 221 Mich 264, 267 (1922). No mention was made of the underlying contract claim. The clause simply set for the court a limit regarding the lien judgment.
Affirmed. Costs to appellee.
All concurred.
The judgment lien was entered only against Service Investment Company, the court having dismissed the cause of action against Alex and Muriel Seskin concluding they had no interest in the property.
The issues presented in this application were the same as those upon which defendant had. previously sought relief in its motion for rehearing to this Court (denied October 15, 1969) and in an application for leave to appeal to the Supreme Court (denied July ,24, 1970). The argument was grounded upon the defendant’s interpretation of the last paragraph of our opinion in Canvasser Custom Builders, Inc v Seskin, 18 Mich App 606 (1969). Defendant contended that this paragraph established that the lower court based its findings of amount due upon a list of items claimed to have been performed by plaintiff (exhibit 5). The settled record of the trial court indicates this not to be the ease but instead construed it to be only a partial list submitted to defendant in an effort to effect a settlement.
The plaintiff’s contract was with Service Investment Company. The individual defendant was joined because of a warranty he had given plaintiff guaranteeing payment should the corporation fail to pay.
Since it was a cost-plus-percentage in varying degrees contract and since only defendant-owner, who paid the bills, had complete knowledge of the total cost from which the amount due plaintiff could be determined, plaintiff erroneously claimed a lesser amount due in the statement filed with the register of deeds. Hence, he ■ was limited in the amount of his lien. It was only after the construction records were made available during the course of the lien trial that plaintiff discovered that a larger sum was due.
See MCLA 570.14; MSA 26.294. | [
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Memorandum Opinion.
Defendant-appellant, upon his plea of guilty, was convicted of receiving and concealing stolen property, contrary to MCLA 750.535; MSA 28.803. He appeals.
An examination of the record discloses no reversible error.
Affirmed. | [
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Per Curiam.
Defendant owns an unfenced swimming pool. Section 429.82 of the Kentwood Building Code provides:
“Swimming Pool Safety Devices. Every person owning land on which there is situated a swimming pool, fish pond or other body of water which constitutes an obvious hazard and contains twelve (12) inches or more of water in depth at any point, shall erect and maintain thereon an adequate enclosure either surrounding the property or pool area, sufficient to make such body of water inaccessible to small children.” (Emphasis supplied.)
Refusing to enclose his pool, defendant was charged and subsequently convicted of violating the ordinance. The question upon which we are asked to pass is whether the ordinance requires enclosures for all swimming pools or only for those which constitute an “obvious hazard”.
The defendant moved to quash the complaint on the ground that the complaint did not charge that the defendant’s swimming pool was an obvious hazard. The trial judge denied the motion.
The plaintiff contends that the clause “which constitutes an obvious hazard” modifies only “or other body of water”.
The defendant maintains that the clause “which constitutes an obvious hazard” modifies “swimming pool, fish pond or other body of water”.
As stated in People v Goulding, 275 Mich 353, 359 (1936): “Criminal statutes must so clearly define the acts upon which the penalty is denounced that no ordinary person can fail to understand his duty and the departure therefrom which the law attempts to make criminal.”
In People v Lockhart, 242 Mich 491, 494 (1928), the Court said:
“It is also the duty of this Court, having due regard for other rules of construction, to construe the penal provisions of statutes in a manner most favorable to the accused.
“ ‘If the statute contains a patent ambiguity, and admits of two reasonable and contradictory constructions, that which operates in favor of a party accused under its provisions is to be preferred.’ 25 RCL p 1084.”
In our opinion the ordinance is ambiguous and should be interpreted as contended by the defendant. The trial judge should have quashed the complaint.
Reversed. | [
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Per Curiam.
The defendant challenges the constitutionality of MCLA 750.535; MSA 28.803, on the grounds that it violates the privilege against self-incrimination, the presumption of innocence and due process.
That statute makes receiving or concealing stolen property a crime and provides that:
"Any person being a dealer in or collector of any merchandise or personal property, or the agent, employee or representative of a dealer or collector who fails to make reasonable inquiry that the person selling or delivering any stolen, embezzled, or converted property to him has a legal right to do so or who buys or receives any such property which has a registration, serial, or other identifying number altered or obliterated on any external surface thereof, shall be presumed to have bought or received such property knowing it to have been stolen, embezzled, or converted. This presumption may be rebutted by proof.” MCLA 750.535(2); MSA 28.803(2). (Emphasis added.)
The defendant was in the business of salvaging and rebuilding automobiles. He was arrested for receiving or concealing stolen property after police observed that the vehicle identification number had been removed from the late model Cadillac he was towing. The defendant produced no proof of ownership or bill of sale. It was shown at trial that the Cadillac had been stolen approximately two weeks before his arrest. No witnesses were offered by the defense. The defendant was convicted by a jury of receiving or concealing stolen property and sentenced to one to five years imprisonment. The Court of Appeals affirmed the conviction. 68 Mich App 63; 241 NW2d 759 (1976).
We agree with the Court of Appeals conclusion that the statute does not violate the defendant’s privilege against self-incrimination. Under the challenged provision, knowledge that the property was stolen is inferred from evidence that identifying numbers on the property were altered or removed. The situation is like the one in which the prosecutor produces direct evidence establishing a prima facie case. The introduction of any evidence which tends to implicate the defendant increases the pressure on him to testify but this pressure does not violate his privilege against self-incrimination. Barnes v United States, 412 US 837; 93 S Ct 2357; 37 L Ed 2d 380 (1973); People v Kayne, 286 Mich 571; 282 NW 248 (1938); Yee Hem v United States, 268 US 178; 45 S Ct 470; 69 L Ed 904 (1925). We disapprove the distinction drawn in People v Serra, 55 Mich App 514; 223 NW2d 28 (1974), between "state of mind” presumptions and other presumptions for the reasons discussed by the Court of Appeals in this case. 68 Mich App 63, 67-73.
The statutory presumption does not violate the presumption of innocence or the requirement that the defendant be proven guilty beyond a reasonable doubt. These principles do not prohibit the use of statutory rules of evidence which place upon a defendant the burden of going forward with the evidence after the "prima facie evidence” is introduced. People v Kayne, supra, 578-579. The presumption of innocence may be overcome by the additional weight of a countervailing legislative presumption as well as by direct proof alone. Yee Hem v United States, supra, 184-185. The statute in People v Licavoli, 264 Mich 643; 250 NW 520 (1933), made proof of reputation for engaging in an illegal business prima facie evidence of being engaged in an illegal business. Although it was noted in that case that the statute deprived a defendant of the presumption of innocence, the statutory presumption was held to be irrational and arbitrary. People v Licavoli, supra, 645.
Here, there is a rational connection between the proven facts and the fact presumed. Common experience tells one that a dealer who receives a car with altered or obliterated identifying numbers likely knows that the car was stolen. The presumption thus meets the due-process test as stated in Tot v United States, 319 US 463, 467-468; 63 S Ct 1241; 87 L Ed 1519 (1943):
"[A] statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience.”
As required by Leary v United States, 395 US 6, 36; 89 S Ct 1532; 23 L Ed 2d 57 (1969), it can be said with substantial assurance that the presumed fact is more likely than not to flow from the proven fact. The defendant urges adoption of a test requiring proof beyond reasonable doubt that the presumed fact follows from the proven fact. The United States Supreme Court has not yet addressed this issue and we decline to adopt the suggested standard.
A clearer instruction on the presumption than that provided by a reading of the statute should have been given. By itself, an instruction that one who received stolen property with altered identifying numbers is presumed to have known the property was stolen could lead a jury to conclude that an essential element of the crime had been proven as a matter of law. It is reversible error for a judge to instruct that an essential element of the crime exists as a matter of law. People v Allensworth, 401 Mich 67; 257 NW2d 81 (1977). The jury should be instructed that it may, but need not, infer the existence of the presumed fact from the proven fact. MRE 302(b). Here, the reading of the statute did not constitute reversible error because the judge subsequently instructed the jury at length on the prosecutor’s burden of proof, the presumption of innocence and the jury’s duty to acquit if the elements of the offense had not been proven beyond a reasonable doubt. The jury was also instructed that:
"Circumstances are never presumed. Each thought making up the chain of circumstances must be proven beyond a reasonable doubt, and if the prosecution fails to prove any one link making up the chain of circumstances, the defendant must not be convicted”.
The defendant’s final claim is that he is entitled to credit for time served in Federal prison against his sentence in this case. He was sentenced to one to five years imprisonment for the conviction in this case on August 30, 1974 and was released after posting an appeal bond. While his appeal bond was in effect, he served from January 20, 1975 to June 4, 1975 in the Detroit House of Correction on a sentence imposed in an unrelated case and from June 25, 1975 to February 11, 1976 in Federal prison for Federal income tax violations. The defendant moved to amend the mittimus and the judge ordered that the defendant receive credit for time served on the other state conviction but denied credit for time served on the Federal conviction.
The rule in Michigan is that a sentence may not be imposed to commence at the completion of another sentence in the absence of statutory authority. In re Carey, 372 Mich 378; 126 NW2d 727 (1964). In that case, the defendant had been sentenced to 5 years imprisonment for a Federal offense four days before he was sentenced to serve 3 to 14 years on a state conviction. After noting that two state prison terms would run concurrently, it was held that the defendant should receive credit for the time served in Federal prison:
"A defendant who is sentenced in a State court after receiving sentence in a Federal court is subject to the same 'undefined and uncertain contingencies’ about when State sentence begins, as he is in the case of 2 or more State sentences. The reason for the rule aptly applies in both types of cases. Therefore, we hold that where a defendant has been sentenced in Federal court, and is subsequently sentenced in a State court or courts, sentence may not be imposed to commence at the completion or expiration of Federal sentence, in the absence of statutory authority.” In re Carey, supra, 381.
The people contend that Carey is distinguishable because the sentencing for the Federal offense occurred before the state sentencing. Here, the defendant was sentenced on the Federal offense after the state sentencing.
We do not find these differences in the order of sentencing to be controlling when the actual imprisonment on the Federal conviction began before imprisonment on the state conviction. In such a case, a defendant is subject to the same uncertain contingencies about when the state sentence will begin. The defendant is entitled to credit for time served on the Federal conviction. Pursuant to GCR 1963, 865.1(7), the defendant’s sentence is amended to grant him credit for the time served in Federal prison.
The defendant’s conviction is affirmed.
Williams, Coleman, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred. | [
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Ryan, J.
The dispositive issue in this action under the "dramshop act” is whether the plain tiffs were properly allowed to continue their suit against the defendant "dramshop” after settling with the allegedly intoxicated defendant. The fact that the allegedly intoxicated defendant continued as a nominal party and was not formally dismissed from the suit until the close of the proofs in this case is insufficient to satisfy the "name and retain” provision of the statute. We hold that a defendant has not been "retained in the action”, within the meaning of the statute, if a settlement of any kind is reached between the plaintiff and the allegedly intoxicated defendant before "the litigation is concluded by trial or settlement”. Accordingly, the trial court erred in denying the dramshop defendants’ motion to dismiss, and the decision of the Court of Appeals must be reversed.
The plaintiffs’ decedent, Stanley M. Putney, was killed when the motorcycle he was driving was struck from the rear by an automobile. The plaintiffs subsequently filed a suit alleging negligence against Paul S. Gibson, who drove the automobile, and Judith M. Gibson, who owned it. The plaintiffs also alleged that the defendant owners of the taverns, the Melody Bar and the Hoover Corner Bar, had sold or furnished alcoholic beverages to defendant Paul S. Gibson while he was visibly intoxicated, in violation of the dramshop act.
On the morning of the first day of trial, the plaintiffs settled with defendant Charles Good, the owner of the Hoover Corner Bar, for $8,000 in return for a covenant not to sue. The jury was then impaneled. On the morning of the second day of trial, counsel for the plaintiffs informed the court that plaintiffs’ suit against defendants Paul S. Gibson and Judith M. Gibson had been settled for $40,000 in exchange for a covenant not to sue. However, the Gibsons were not formally dismissed as defendants at that time, nor was the jury informed of the settlement. The trial judge instructed the Gibsons’ attorney to "do what you consider appropriate without attempting to hurt or help either side”. Although he examined several witnesses, he did not participate in the examination of Paul Gibson nor did he call any witnesses on behalf of his clients.
At the conclusion of the proofs, but prior to the trial court’s instructions to the jury, counsel for the Gibsons requested that the trial judge inform the jury that the Gibsons were no longer interested parties in this suit. Counsel for plaintiffs concurred in this request. Counsel for the Haskins requested that the trial judge require the continued trial participation of the Gibsons through closing arguments and jury deliberation in spite of the settlement between plaintiffs and defendants Gibson. The trial judge found as fact that there had been no collusion between the plaintiffs and the Gibsons, and that the $40,000 settlement was not a mere token settlement. The trial judge concluded that to require continued participation by the Gibsons would amount to an injustice and would discourage future settlements in similar cases and ruled that the jury should be informed that the Gibsons were no longer parties to the suit. At that point, counsel for the remaining defendants, the Haskins, moved to dismiss the plaintiffs’ suit against his clients. The motion to dismiss was denied.
The trial court informed the jury that the suit against the defendants Gibson had been dismissed. After final argument, the jury was instructed and, following deliberation, returned a verdict in favor of the plaintiffs totaling $25,050. The defendants’ post-trial motion for a new trial, based on the failure to "retain” defendant Paul S. Gibson as a defendant, was denied. On appeal, the Court of Appeals affirmed. Putney v Gibson, 94 Mich App 466; 289 NW2d 837 (1979). We granted leave to appeal. 408 Mich 897 (1980). We reverse.
The relevant portion of MCL 436.22; MSA 18.993, provided that:
"No action against a retailer or wholesaler or anyone covered by this act or his surety, shall be commenced unless the minor or the alleged intoxicated person is a named defendant in the action and is retained in the action until the litigation is concluded by trial or settlement.”
In Salas v Clements, 399 Mich 103, 108-109; 247 NW2d 889 (1976), this Court agreed with the Court of Appeals as to the purpose of the provision:
" 'The provision will eliminate the common practice whereby the intoxicated person enters into a settlement with the injured plaintiff for a token sum, and thereafter energetically assists the plaintiff with the prosecution of a suit against the tavern owner. The provisions will also discourage possible collusion and perjury by those too weak to resist the obvious temptation inherent in the original dramshop act, which has now been recognized by the Legislature and corrected through this amendment.’ ”
The plaintiffs-appellees argue that since the trial judge found that the $40,000 settlement was no "mere token” amount, and that no fraud or collusion in fact existed, this Court should find "sub stantial compliance” with the "name and retain” provision of the statute. We disagree. In the first place, in the absence of a record adequately supporting such factual findings, we cannot presume that the $40,000 settlement precludes all possible collusion. It is not at all obvious that a $40,000 settlement in a wrongful death case arising from the defendant’s alleged drunken driving is more than "token”. However, such difficult factual questions were avoided when the Legislature adopted a per se rule requiring the defendant to be "retained in the action until the litigation is concluded by trial or settlement”. The Legislature could have required the allegedly intoxicated defendant to be retained "unless the trial judge finds the absence of fraud and collusion and approves the settlement”. For some reason, perhaps because it recognized the difficulties inherent in that sort of inquiry and the resulting drain on judicial resources, the Legislature chose not to write such an exception into the statute. We similarly decline to create such an exception by judicially amending the statute.
The plaintiffs also argue that since defendant Paul Gibson was not formally dismissed as a party defendant until the close of the proofs, he was "retained” long enough to satisfy the "name and retain” provision of the statute. We must disagree. Plainly the litigation was not "concluded” at that point. The trial judge felt it would be "unnecessary” to retain the defendant any further. That observation was eminently correct in a practical sense. Once defendant Paul Gibson settled with the plaintiffs, he ceased to be a real party in interest and should have been dismissed. It was "unnecessary” to retain him from the moment of settlement and to have done so was meaningless, since the litigation no longer affected his rights and liabilities. See GCR 1963, 207.
For purposes of the "name and retain” provision, however, it is clear that Mr. Gibson should have been retained as an interested party defendant until the litigation was concluded. One of the ways the "name and retain” provision prevents fraud and collusion is by ensuring that the defendant will have a direct financial stake in personally testifying, examining witnesses, and arguing that he did not act in a negligent manner. Once the defendant’s liability is fixed and limited, he has no incentive to produce witnesses or testimony tending to prove that he was not "visibly intoxicated” on the date in question. The dramshop defendant may have much more difficulty in identifying, locating, and obtaining favorable testimony from the defendant’s friends or acquaintances who observed him at relevant times. Retaining the allegedly intoxicated person as a nominal defendant, with instructions not to "hurt or help either side” is insufficient to satisfy the name and retain provision.
The Court of Appeals noted in this case, as it did in several prior cases, that requiring the allegedly intoxicated person to be retained as a real party in interest might "impede the prompt disposition of litigation and force trials of cases that might otherwise be settled”. Buxton v Alexander, 69 Mich App 507, 511; 245 NW2d 111 (1976), lv den 399 Mich 827 (1977), quoted in Putney, supra, 94 Mich App 477. We recognize that in the practical realities of civil litigation, the vast majority of cases must be and are in fact settled. Wise judicial policy favors settlement between the parties. Watts v Dep’t of State, 394 Mich 350; 231 NW2d 43 (1975); Ogden v George F Alger Co, 353 Mich 402; 91 NW2d 288 (1958); see also MRE 408.
However, settlement between the plaintiffs and the allegedly intoxicated driver in any form would not terminate the litigation and avoid a trial under the Court of Appeals opinion in this case. While the trial sought by the plaintiffs might be shortened somewhat by the deletion, but in this case not the departure, of the intoxicated defendant, that saving is not likely to be of great significance. The position urged by defendant appellants and adopted today is the one that avoids a trial when the plaintiff settles with the allegedly intoxicated defendant. As a practical matter, we think the probable result of today’s decision will be no noticeable increase or decrease in the number of "dramshop” cases disposed of by settlement. The plaintiffs will simply obtain the best offer from both defendants before entering into a joint settlement.
Finally, even if we knew with certainty that enforcing the "name and retain” provision would decrease settlements and increase the number of jury trials, we would not be justified in ignoring the statute for that reason. The Legislature has concluded that "dramshop” cases offer a particular danger of fraud and collusion and has enacted the "name and retain” provision as a remedy. If that remedy is unwise and increases the judicial workload, then so be it. The legislative mandate must be enforced. Dramshop plaintiffs are always free to settle with an allegedly intoxicated tortfeasor prior to conclusion of the litigation by trial or by settlement with a tavern owner, but the action against the tavern owner must also be dismissed at the time such a settlement is made.
We reject the plaintiffs’ contention that this construction of the statute produces an "unreasonable, unjust result” similar to that found in Salas, supra, 399 Mich 109. In Salas, the plaintiffs’ failure to "name and retain” the allegedly intoxicated person was due to their lack of knowledge of their assailant’s identity, a circumstance entirely beyond their control. Here, the decision not to retain Mr. Gibson in the litigation by settling that portion of the lawsuit was entirely within the plaintiffs’ control. If dismissal of a plaintiff’s action against a tavern owner is always "unreasonable and unjust”, then the "name and retain” provision will never be enforced. Refusing to enforce the statute because the sanction of dismissal is always "unreasonable and unjust” would be tantamount to a judicial repeal of the "name and retain” provision. We are obligated to enforce the statute as written.
Having concluded that the Haskins should have been dismissed as defendants at the time defendant Paul Gibson settled with the plaintiffs, we need not address the deduction or "setoff” issue briefed by the parties.
The decision of the Court of Appeals is reversed.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, and Blair Moody, Jr., JJ., concurred with Ryan, J.
MCL 436.22; MSA 18.993, amended by 1980 PA 351.
After the 1980 amendment, the name and retain provision reads as follows: "An action against a retailer, wholesaler, or anyone covered by this act or a surety, shall not be commenced unless the minor or the alleged intoxicated person is a named defendant in the action and is retained in the action until the litigation is concluded by trial or settlement.”
The plaintiffs’ complaint asked for $500,000 in damages; the $40,000 settlement may well have been paid entirely or in part by defendants’ insurer.
"Parties may be added or dropped by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just.”
See, for example, Buxton v Alexander, 69 Mich App 507; 245 NW2d 111 (1976), lv den 399 Mich 827 (1977). | [
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Per Curiam.
This case presents the question whether an insurer’s failure to include a provision in an insurance policy which reserves the right to avoid liability in the event of a material misrepresentation by the insured precludes the insurer from doing so. The trial court answered this question in the negative, but the Court of Appeals reversed the judgment of the trial court. We conclude that the trial court was correct.
I
H. Richard Wiedmayer was employed by Schoolmaster Plumbing & Heating. On October 31, 1975, Wiedmayer applied through his employer for group life and health insurance with the defendant, Midland Mutual. He signed the application directly beneath the declaration which stated in part that: "[t]he above representations are true and complete to the best of my knowledge and belief and this application shall not be binding upon the company until the policy is issued by the company and the first premium has been paid while any conditions affecting insurability are as described herein”. He checked the answer box "no” to the question "Have you or any of the above-named family members been hospitalized, consulted or been treated by a physician for any reason during the past five years?” Mr. Wiedmayer’s application was accepted by the defendant, and the insurance policy went into effect on December 1, 1975. Accompanying the certificate of insurance was a letter from the defendant stating in part that:
"Your coverage is issued on the basis of the information shown on the application. Should the information be incomplete or incorrect in any way, please notify the home office immediately since any omissions or misstatements may affect your benefits and the validity of your policy.”
Also attached to the letter forwarding the certificate was a captioned "Important Notice”, with the following statement:
"Your policy or certificate was issued on the basis that the answers to all questions and the information shown on your application are correct and complete. Please read the copy of your application, which is attached to and a part of the policy, and check it carefully.
"If there are any misstatements in the application, or in [sic] any information concerning the past medical history of any insured person has been omitted, you should write to The Midland Mutual Life Insurance Company within 10 days of receipt of this notice and advise it of the incorrect or omitted information. Otherwise, your policy may not be a valid contract or your coverage may not be effective.”
On January 13, 1976, Mr. Wiedmayer entered a hospital and was diagnosed as having chronic congestive heart failure. On July 16, 1976, the defendant refused to pay Wiedmayer’s claim for health care treatment on the ground that Weid mayer had falsely answered the question in the application with regard to whether he had consulted or had been treated by a physician during the past five years. Defendant enclosed a refund check and stated that the policy was void. Mrs. Wiedmayer subsequently required medical treatment, and Mr. Wiedmayer eventually died in April, 1977, of the heart problem. Mrs. Wiedmayer sued to recover the benefits for her husband’s hospitalization, her medical treatment, and the life insurance proceeds under a provision of the policy. The suit was filed on March 13, 1978. After completion of discovery, the defendant moved for summary judgment, alleging that no genuine issue of material fact existed and attaching, among other things, the affidavit of the defendant’s director of group claims to the effect that no policy would have been written at any price if the facts were known. Those facts included the allegation that, during the five years prior to his application, Mr. Wiedmayer, on at least nine occasions, had seen a physician who had diagnosed him as suffering from cardiac enlargement with evidence of pulmonary passive congestion and had prescribed medication, digitoxin. There was also evidence that Mr. Wiedmayer gave a history to his physician when entering the hospital in January, 1976, which included the fact that: "The patient states that he was first aware that he had an enlarged heart two or three years ago after he sought consultation from Dr. Rigterink regarding a chronic sore throat. At that time he was placed on digitoxin 0.1 and then improved and remained improved without change in his medical program up until November 1975”. There was also deposition testimony from Mr. Wiedmayer’s employer, Schoolmaster, to the effect that he had seen Mr. Wiedmayer take medication regularly in the month before the ap plication for the insurance was filed and that Mr. Wiedmayer had also taken time off from work to see a doctor when he complained of not feeling well and being short of breath. Although the Wiedmayers did not cash the refund check for the premium, the defendant sent another refund check directly to Schoolmaster Plumbing, the owner of the policy, which was negotiated.
The plaintiff, Mrs. Wiedmayer, opposed the motion for summary judgment on a theory that the defendant had to show fraudulent intent to avoid the policy because of a material misrepresentation. The trial judge ruled that under statutory and case law the defendant did not have to show fraud to avoid a major medical or life insurance policy as long as there was a material misrepresentation. The trial judge found that there was no genuine dispute, that there was a material misrepresentation, and that the insurer would not have issued the policy had it been aware of the misrepresentation. On January 16, 1980, the trial judge entered an order granting summary judgment for the defendant. The plaintiff appealed, and the Court of Appeals reversed. Wiedmayer v Midland Mutual Life Ins Co, 108 Mich App 96; 310 NW2d 285 (1981).
II
In reversing the trial court’s grant of summary judgment in favor of the defendant, the Court of Appeals concluded:
"Interpreting the above provisions of the insurance policy, we find that they do not permit cancellation of the policy in the event of a misstatement in the application. Rather, these provisions permit defendant only to adjust the premium or benefits under the policy in the event of a misstatement on the application. Construing these provisions strictly against defendant, we hold that the lower court erred in granting summary judgment to defendant. Defendant cannot void the policy where its provisions do not give it that authority.
"To the extent that the statute relied upon by the lower court and by defendant would permit the voiding of a contract where an applicant has made a material misstatement of fact, we find that that statute and its provisions are not self-effectuating. That is, the statute permits, but does not require, an insurance company to void a policy where a material misstatement has occurred in the application. Inasmuch as defendant did not reserve to itself this power, it cannot rely upon this statute.
"The lower court erred in granting summary judgment to defendant. Defendant was not entitled to void the policy. Rather, the only authority that is reserved to itself under the policy was to adjust either the premiums or benefits in the event of a misstatement of facts. As a consequence, we reverse the lower court order granting summary judgment and remand this cause for trial.” 108 Mich App 102.
Ill
There can be no doubt that insurers are permitted by MCL 500.2218; MSA 24.12218 to void a policy where there has been a material misrepresentation of fact which affected either the acceptance of the risk or the hazard assumed by the insurer. Must the insurer, in order to avail itself of the option extended by this statute, place a provision reserving this option in the insurance policy? We think not.
The Court of Appeals, in reversing, emphasized the fact that the insurance policy did provide for an adjustment of premiums or benefits in the event of a misstatement of fact. Since, however, no mention was made of voiding the policy for a misstatement of fact, the Court of Appeals reasoned that the insurer could not void the policy. We fail to see the logic of such a position.
In Bendford v National Life & Accident Ins Co, 356 Mich 52, 59; 96 NW2d 113 (1959), we addressed the question whether an application for insurance which was not a part of or attached to the policy was nevertheless admissible as evidence to establish fraud in the procurement of the policy. We held that:
"One seeking to void an agreement for fraud is not limited, in proving such fraud, to the provisions of the agreement itself.”
Moreover, in General American Life Ins Co v Wojciechowski, 314 Mich 275, 281; 22 NW2d 371 (1946), we stated:
"A false representation in an application for insurance which materially affects the acceptance of the risk entitles the insurer to cancellation as a matter of law. ” (Emphasis supplied.) .
The fact that the insurance policy did not affirmatively provide for cancellation under such circumstances does not operate as a bar to the insurer’s ability to void the policy in the face of fraud. Common law has always permitted the avoidance of a contract procured by means of fraud. New York Life Ins Co v Buchberg, 249 Mich 317; 228 NW 770 (1930).
In Government Employees Ins Co v Chavis, 254 SC 507, 516-517; 176 SE2d 131 (1970), the South Carolina Supreme Court upheld the right of an insurer to rescind an automobile liability policy because of fraudulent statements made in the procuring of it, although the insurer had not secured the right to do so in the policy. In doing so, the Court observed:
"We know of no authority which requires the insurer to reserve the right to rescind its policy for fraud or material misrepresentation.”
We agree with the South Carolina Supreme Court.
Pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we reverse the judgment of the Court of Appeals and reinstate the judgment of the trial court. The motion by the Minnesota Mutual Life Insurance Company for leave to file a brief amicus curiae is denied as moot.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred. | [
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Fitzgerald, C.J.
This is an unusual medical malpractice action. It owes its uniqueness to a jury award of $350,000 for exemplary damages. Thus, the issue before us is whether the availability of ordinary damages for mental distress makes exemplary damages for injury to feelings redundant.
I
In 1972, Anna Veselenak was referred to defendant Dr. Sidney Smith, a general surgeon, for gastrointestinal bleeding and diverticulosis. Surgery was performed. Her condition proved chronic and, in August, 1974, Mrs. Veselenak returned to Dr. Smith’s office complaining of increased abdominal pain and bloody stools. Arrangements were made to admit her to McLaren General Hospital. When she was admitted approximately one week later, her condition had deteriorated significantly. Emergency surgery was performed by Dr. Smith, assisted by defendants Dr. Choi and Dr. Nobel, a surgical resident employed by defendant McLaren General Hospital.
During the surgical procedure, numerous hemostats or clamps were used. One was not retrieved. It remained in Mrs. Veselenak’s abdominal cavity until September, 1976, when it was removed by other physicians whom she consulted.
After Mrs. Veselenak’s discharge from McLaren General, she embarked on a two-year course of treatment with Dr. Smith. She complained increasingly of abdominal pain, diarrhea, and inability to sleep or eat. Dr. Smith assured and reassured her that this symptomatology was not inconsistent with normal post-operative progress after such major surgery. He prescribed medication for the pain.
Finally, in October, 1975, Dr. Smith prescribed abdominal x-rays to demonstrate to Mrs. Veselenak that she did not have cancer and thus counter her increased depression. These x-rays revealed the presence of a 6-1/2-inch-long hemostat. Confir matory x-rays were taken a month later. The radiologist immediately notified Dr. Smith by phone, letter following.
Dr. Smith testified that he informed Mrs. Veselenak of the presence of the hemostat two days later. This both Mrs. Veselenak and her daughter (who was present at every appointment) emphatically denied. They testified that they were advised in August, 1976 of the presence of a small hemostat and that immediate removal was unwise.
Dr. Smith further testified that he wished to treat conservatively in order to observe what effects, if any, the hemostat was having on Mrs. Veselenak’s health. He continued her regimen of pain medication.
The surgeon who recovered the hemostat in September, 1976, testified that he would have counseled immediate removal after discovery in late 1975. He noted that the hemostat had perforated her small bowel, causing a chronic if localized infection, and was protruding into her kidney. He stated that she soon would have died had the hemostat not been removed and that, following the 1976 surgery, she made a normal recovery.
The jury (after a lengthy emotion-charged trial) returned verdicts in favor of plaintiffs totaling $420,000. Plaintiff Anna Veselenak was awarded $10,000 each from Dr. Choi and McLaren General Hospital. In addition, the jury awarded her $15,-000 for compensatory and $350,000 for exemplary damages from Dr. Smith. Plaintiff Steve Veselenak received nothing on his claim for loss of consortium as to Dr. Choi and McLaren General Hospital, but prevailed as to Dr. Smith in the amount of $35,000. Dr. Smith (hereinafter defendant) appeals the jury verdicts against him.
The trial court denied defendant’s motions for a new trial and for a remittitur. The Court of Appeals affirmed in an unpublished opinion per curiam. We granted leave to appeal and directed the parties to include among the issues to be briefed whether exemplary damages should be recoverable in a malpractice or negligence action. 411 Mich 973 (1981).
II
Defendant argues that exemplary damages should not have been recoverable in this case. Defendant’s argument proceeds along two lines. First, defendant cites Kelly v Chillag, 381 F2d 344 (CA 4, 1967), and Noe v Kaiser Foundation Hospitals, 248 Or 420; 435 P2d 306 (1967), for the proposition that concealment of malpractice from a patient by the physician who committed the malpractice is a censurable lack of candor but not sufficient to justify the award of punitive damages. Second, defendant argues that a medical practitioner, as a healer, should not be subject to any charges of malice arising out of the doctor-patient relationship. This policy argument is based on the idea that no physician is presumed to be a malicious adversary of his patient.
We agree that exemplary damages should not have been awarded, but not for the reasons defendant offers. The argument that concealment, standing alone, is not sufficient to support an award of exemplary damages is unpersuasive. Kelly v Chillag, supra, cites no authority and has been cited by none. Noe, supra, does not involve concealment in the face of a clear duty to disclose, a state of facts which the jury in the instant case may have found and which the evidence adduced at trial clearly supports. The argument that recitation of the Hippocratic oath should raise a conclusive presumption of good faith, thus insulating physicians from any charges of malicious conduct arising out of the physician-patient relationship, flies in the face of legal accountability.
As the analysis which follows will make clear, we hold that exemplary damages should not have been awarded in this case because we conclude that the award of exemplary damages for injury to feelings is duplicative of the award of ordinary damages for mental distress and anguish. We perceive no principled reason for allowing a double recovery for the same injury. As a result of our decision on this issue, we find it unnecessary to reach the issue stated in the grant of leave to appeal. We reverse the judgment of the Court of Appeals and remand for a new trial limited to the question of the amount of ordinary damages plaintiffs suffered as a result of defendant’s malpractice. Winchester v Meads, 372 Mich 593, 599; 127 NW2d 337 (1964). In light of our disposition of this case, we do not address defendant’s other arguments.
Ill
This Court has grappled with the problem of allowing or of disallowing the award of exemplary (formerly called punitive) damages in numerous cases over the last 120 years. Although systematic development of this area may seem to be the exception, certain consistent principles have emerged.
In 1868, after a discussion of the policy reasons supporting the award of exemplary damages, the Court concluded that the only "proper application of damages beyond those to person, property or reputation, is to make reparation for the injury to the feelings of the person injured”. Detroit Daily Post Co v McArthur, 16 Mich 447, 453 (1868). Nevertheless, the rationale persisted that punishment was a legitimate basis for the award of these unusual damages for injury to feelings. It was finally interred by two cases written by Justice Cooley. In Watson v Watson, 53 Mich 168; 18 NW 605 (1884), and in Stilson v Gibbs, 53 Mich 280; 18 NW 815 (1884), Justice Cooley examined the classic common-law arguments opposing the award of exemplary damages for purposes of punishment, found them convincing, and articulated the idea that exemplary damages are merely a class of compensatory damages. These two "rules” summarized by the phrase 'compensation for injury to feelings’, retain their vitality today. Kewin v Massachusetts Mutual Life Ins Co, 409 Mich 401; 295 NW2d 50 (1980); Ray v Detroit, 67 Mich App 702; 242 NW2d 494 (1976).
A close reading of the early exemplary damages cases also suggests that these unusual damages may have been used to supply a remedy for mental injury not otherwise recognized. Actual damages compensated for economic loss, but not for non-economic loss. In addition, the award of actual damages seemed to preclude the award of addi tional compensation for non-economic loss. Warren v Cole, 15 Mich 265 (1867); Hyatt v Adams, 16 Mich 180 (1867). Assuming actual damages were not provable but mental injury certain, exemplary damages became available to compensate the injured party. Fay v Swan, 44 Mich 544; 7 NW 215 (1880).
As proof of actual damages is no longer a bar to the award of exemplary damages, so too actual damages, where properly pled, now include compensation for shame, mortification, mental pain and anxiety, Beath v Rapid R Co, 119 Mich 512; 78 NW 537 (1899), and for annoyance, discomfiture, and humiliation, Grenawalt v Nyhuis, 335 Mich 76; 55 NW2d 736 (1952). In short, actual damages now include compensation for mental distress and anguish.
IV
The resolution of the intellectual and legal questions underpinning the award of exemplary damages was stated in the context of a finite number of factual patterns. Much of the work of the Court since then has been to determine the type of conduct which would give rise to the threshold of injured feelings necessary to support an award of exemplary damages.
This Court has held that the act or conduct must be voluntary. Detroit Daily Post Co v McArthur, supra. This voluntary act must inspire feelings of humiliation, outrage, and indignity. Kewin v Massachusetts Mutual Life Ins Co, supra. The conduct must be malicious or so willful and wanton as to demonstrate a reckless disregard of plaintiffs rights. Wise v Daniel, 221 Mich 229; 190 NW 746 (1922); McFadden v Tate, 350 Mich 84; 85 NW2d 181 (1957); Bailey v Graves, 411 Mich 510; 309 NW2d 166 (1981).
As a practical matter, the conduct we have found sufficient to justify the award of exemplary damages has occurred in the context of the intentional torts, slander, libel, deceit, seduction, and other intentional (but malicious) acts. Due to the required mental element, negligence is not sufficient to justify an award of exemplary damages. The parties to this action and the amici curiae do not urge otherwise.
In the instant case, plaintiffs argue that defendant’s conduct of alleged concealment is the sort of grievous act which will support an award of exemplary damages. Assuming this argument is correct, the question becomes: what injury is sought to be compensated?
The trial court instructed the jury that plaintiff Anna Veselenak could be compensated for pain, suffering, and mental anguish caused by defendant’s violations of the applicable standard of care. The court further instructed that exemplary damages were awardable to compensate Anna Veselenak for her injured feelings. Such damages, the jury was informed, flow from conduct which "enhances * * * pain, suffering, humiliation, mental and physical anguish or disgrace.” After a discussion with counsel about the instructions given, the court recalled the jury and explained that an award of exemplary damages is to compensate for "actual pain * * * suffering, embarrassment, [and] humiliation”.
From the instructions given, it is clear that the injury sought to be compensated by defendant’s alleged concealment is Anna Veselenak’s pain, suffering, mental distress and anguish. It is equally clear that, if the jury deliberated as instructed, it also considered Anna Veselenak’s pain, suffering, mental distress and anguish as part of her claim for ordinary damages. Thus, our analysis in the preceding section and the record before us both support the idea that the giving of an exemplary damages instruction permitted Anna Veselenak to be doubly compensated for one injury.
Amicus curiae Michigan Trial Lawyers Association contends that ordinary damages and exemplary damages are not redundant. It maintains that a distinction may be drawn between "mental distress intrinsic to the injury itself (no matter how it occurred) and mental distress emanating from the manner in which the injury occurred”. In addition, it claims that ordinary damages for shame and mortification and exemplary damages for humiliation and indignity are compensating "distinct wrongs”.
These distinctions are, at least, legally unsound. Semantic niceties aside, juries are not asked to differentiate between mental states, such as shame, mortification, humiliation and indignity. Juries are asked to compensate mental distress and anguish, which flows naturally from the alleged misconduct and may be described in such terms as shame, mortification, humiliation and indignity. In addition, if the plaintiff is being compensated for all mental distress and anguish, it matters not whether the source of the mental distress and anguish is the injury itself or the way in which the injury occurred.
V
Defendant is entitled to instructions which do not doubly compensate plaintiff for the same injury, her mental distress and anguish. Accordingly, we reverse and remand for a new trial limited to the question of the amount of ordinary damages plaintiff suffered due to defendant’s malpractice.
Kavanagh, Williams, Levin, Coleman, and Ryan, JJ., concurred with Fitzgerald, C.J.
The late Justice Blair Moody, Jr., took no part in the decision of this case.
See Michael Wade’s excellent treatise on punitive damages in The Michigan Law of Damages (Michael Wade, ed, Ann Arbor: The Institute of Continuing Legal Education, 1978).
Id.
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Lesinski, C. J.
Defendant Vincent Sharpe was convicted by a jury of obtaining over $100 in money under false pretenses with intent to defraud. Following sentencing and denial of motion for new trial, defendant appeals as of right.
The facts of the case are important. According to the complaining witness, a building contractor in September, 1966, had repaired the walls of her basement in an inferior manner. Subsequently, defendant came to Mrs. Yake’s home, identified himself as a police officer connected with the prosecutor’s crim inal fraud division, and, in the company of a “building inspector”, inspected the repair work. Defendant then informed Mrs. Take that the original contractor was in the custody of Florida authorities and that a “bond” was required in order to obtain extradition. After showing defendant her bank deposit books, Mrs. Take gave defendant $1,200 in return for a “copy of the bond.” Two days later Sharpe returned to the Take home and informed the complainant that the “Florida judge” had requested an additional $4,000. After a “conversation with the judge”, Mrs. Take went to her banks and withdrew the $4,000. Defendant took the money and promised to return it in a week. He never has. Defendant denies the above testimony claiming that he took the money as pre-payment for repairing the original basement work.
Defendant’s first argument on appeal is that the plaintiff failed to prove a necessary element of the crime of obtaining money by false pretenses, i.e., an intent by the victim to pass title to the money to the defendant. Defendant claims that the greatest charge that the evidence would sustain is larceny by trick.
MCLA § 750.218 (Stat Ann 1962 Rev § 28.415), reads as follows:
“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 or quantity of property than .was bargained for, or by means of any false weights or measures sell or dispose of a less amount or quantity of property than was bargained for, if such 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 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 or less amount disposed of shall be of value of more than $100, 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.”
The trial court defined the elements of the crime in his instructions to the jury:
“Now, the elements of this charge are three-fold. In the first place, there must be an intent to defraud. Secondly, there must be a use of false pretenses or representations regarding an existing fact. Three, the accomplishment of the intended fraud by means of such false pretenses, and I would add that the other required element is there must be a reliance on the pretenses by the complaining witness or victim.”
A careful reading of the statute convinces us that the trial court’s instructions completely and fairly stated the law of the case. People v. Lee (1932), 259 Mich 355; People v. Bagwell (1940), 295 Mich 412. See, also, People v. Creger (1969), 16 Mich App 59. The intent of the victim that title shall pass is not a necessary element of the crime charged under the statute as amended.
“The object of this statute is to punish cheats.” People v. Lee, supra, p 356. The record shows that there was evidence of the falsity of the claims made as to defendant’s authority and the destination of the money; evidence that the complaining witness paid over $5,200 to defendant because of such representations ; and evidence that by reason of the investment she was defrauded. The intent of the defendant and the weight of the evidence were purely matters for the consideration of the jury. People v. Bagwell, supra, pp 419, 421.
Defendant’s second claim of error is that the trial judge’s instructions to the jury contained an unfair comment upon the evidence. After reviewing the entire instructions we are unable to agree. See People v. Dye (1959), 356 Mich 271.
Affirmed.
All concurred.
MCLA § 750.218 (Stat Ann 1962 Rev §28.415).
Detective Lieutenant Edward Boggs of the Detroit Police Department, Prosecutor’s Bureau, Criminal Fraud Division, refuted defendant’s authority.
The defendant relies on People v. Niver (1967), 7 Mich App 652, in support of the proposition that a necessary element of the crime of false pretenses is an intent upon the part of the victim to pass title to the thing talcen. Niver does make such a statement. However, the Court there relied upon People v. Martin (1898), 116 Mich 446, a ease decided before a 1915 amendment to the false pretenses statute added the words: “or the use of any instrument, facility or article or other valuable thing or service.” In view of this fact and the fact that the issue in Niver was not whether intent to pass title was necessary, but, rather whether actual passage of tille was a necessary element of the crime, Niver is not authority for defendant’s position.
MCLA § 750.356 (Stat Ann 1969 Cum Supp § 28.588). | [
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E. B. Burns, J.
Plaintiff levied a special assessment against the defendant, a rural cemetery corporation, for the cost of constructing a sidewalk adjacent to defendant’s property. Although defendant had proper notice, it voiced no objections to the proposed sidewalk or assessment. However, after construction was completed, it denied liability for payment. Pursuant to its city charter plaintiff broug'ht suit to collect the delinquent assessment and was granted a summary judgment. Defendant appeals contending it was not subject to suit because it was exempt from special assessments.
Two policies are involved in this case; the policy of preserving and protecting burial rights and the places of the dead and the policy of allocating the costs of a municipal improvement among those benefited by that improvement. The decisive question is whether there would be any conflict between the two policies by holding defendant liable to suit for the collection of the assessment. The principal cases relied on by defendant do not convince us that such a conflict exists.
In Woodmere Cemetery Association v. City of Detroit (1916), 192 Mich 553, the Court held that no lien could attach to cemetery property devoted to burial purposes and that land so devoted could not be sold to collect a special assessment. The city of Detroit had sold cemetery land in which were hnried over 50,000 bodies. There was no question that the policy of preserving the places of the dead was violated by this action. The dissenting judges, being 1/2 of the Court, agreed the cemetery lands could not be sold to collect the special assessment but were of the opinion that payment of the assessment could be realized by any other assets reachable by execution. The majority, being the other 1/2 of the Court, did not consider it a .material question whether the city could bring suit for the debt in order to collect the assessment.
In Forest Hill Cemetery Co. v. City of Ann Arbor (1942), 303 Mich 56, the Court held that a nonprofit cemetery’s funds and personal property necessary for the upkeep, care and maintenance of the cemetery were exempt from levy and sale in order to satisfy a special assessment. The decision was based on the fact that the nonprofit cemetery’s personal property was mainly certain reserve funds used for maintaining the burial places. To allow such funds to be taken to satisfy a special assessment would thus violate the policy of preserving the places of the dead. The Court stated that its conclusion would not necessarily apply to cemetery companies organized for profit.
Defendant is a corporation organized for profit. Presumably its personal property consists of more than reserve funds used to maintain the cemetery. •In fact, although it maintains that 71% of its cemetery lots have been sold, defendant has not contended that it- lacks assets apart from its perpetual care reserves from which the special assessment could be paid. We find no Michigan decisions or reasons of policy that preclude plaintiff from seeking a personal judgment holding defendant liable in debt in order to collect the special assessment. Defendant was subject to suit and was not exempt from payment. Furthermore, defendant’s own inaction prevents it from now asserting that it received no special benefit from the public improvement. Forest Hill Cemetery, supra; Nowlen v. City of Benton Harbor (1903), 134 Mich 401.
Affirmed. Costs to plaintiff.
All concurred.
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Per Curiam.
Plaintiff was a passenger in an automobile which collided with a tractor-trailer truck on a one-lane bridge, 40 feet in length. After a jury trial on the merits, a verdict of no cause of action was returned in favor of defendant. Plaintiff’s motion for a new trial on the ground that the verdict was contrary to the great weight of the evidence was denied. Plaintiff assigns as error the denial of his motion for a new trial.
The driver of the automobile in which the plaintiff was traveling was killed. At the trial the plaintiff and the driver of the truck testified. Plaintiff said that a short distance before the bridge the automobile in which he was riding slowed and pulled slightly to the right and then pulled back and entered the bridge. As the automobile entered the bridge he observed defendant’s truck 75 to 100 feet from the opposite entrance to the bridge; the trailer unit attached to the truck was “snaking.” After crossing the bridge plaintiff had no further recollection and no recollection of the collision.
The truck driver' testified that he too observed plaintiff’s automobile make a turn to the right and that it slowed down when doing so. He interpreted this as a signal to him to cross the one-way bridge ahead of plaintiff’s automobile and he proceeded to do so. As he approached to within 50 feet of the bridge he observed plaintiff’s vehicle, then 100 feet from the opposite end of the bridge, suddenly alter its course and head onto the bridge at a greatly accelerated speed. The truck driver said that he stepped on the brakes, the trailer began to swerve and then he accelerated in an attempt to control his unit. He said he was too close to the bridge at the time to stop and that he turned to the extreme right of the bridge. The truck knocked down the east railing. The automobile did not touch the west railing. The evidence is in conflict as to whether the vehicles collided on the bridge or at the end of the bridge from which the truck entered.
The automobile struck the tractor at the fuel tank located behind the cab, and then struck various parts of the trailer,
A motion for a new trial on tbe ground that the verdict was contrary to the great weight of the evidence is addressed to the trial judge’s discretion, and on appeal is reviewed for abuse of discretion. The trial judge did not abuse his discretion when he concluded that the verdict in this case was not contrary to the great, weight of the evidence. The jury could have properly concluded that even if the truck driver had had his truck under better control when he first observed, or should have observed, the automobile in which the plaintiff was traveling proceed to cross the bridge, he could not have prevented the collision because of the actions of the driver of the automobile in greatly accelerating his speed, and, thus, any negligence of the truck driver was not the cause of the plaintiff’s injuries.
Affirmed. Costs to defendant.
9 Callaghan’s Michigan Pleading & Practice (2d ed), § 65.94a, p 371, 3 Honigman & Hawkins, Michigan Court Buies Annotated (2d ed), Buie 527, authors’ comments, p 113; Termaat v, Bohn Aluminum Brass Company (1961), 362 Mich 598, 602. | [
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V. J. Brennan, P. J.
This is an action to recover damages for injuries sustained by plaintiff Dorothy Vander Laan on June 24, 1965, when a truck driven by defendant Karsten and owned by defendant Miedema struck her automobile in the rear. The jury returned a verdict of no cause of action, and the trial court denied plaintiffs’ motions for a new trial and a judgment notwithstanding the verdict. The plaintiffs appeal.
From the evidence most favorable to the defendants, it appears that Dorothy Yander Laan was driving along Aberdeen street in Grand Rapids when a truck in front of her slowed to five or so mph to shift gears before attempting an incline in the road. She followed suit, slowing to five mph a car-length or two behind. Just as she slowed, a truck two or three car-lengths behind her, the one driven by defendant Karsten, went over a dip or bump in the road. Jolted, Karsten turned his head to the side for one second to look through the outside rearview mirror and see whether he had lost his load of lumber. Finding the plaintiff’s automobile moving at five mph and only 15 to 20 feet away when he turned back, he applied the brakes and swerved, but not in time to avoid a collision. Karsten testified that before the jolt he had been moving at 25 or so mph and that he did not see the plaintiff slow until after he looked ahead again, when, according to him, her brake lights first flashed. The investigating officer ticketed Karsten for violating the assured-clear-distance statute.
After the close of proofs, the trial judge recited the assured-clear-distance statute and informed the jury that a motorist is prima facie guilty of negligence by statute if he strikes the rear end of an automobile moving in the same direction. He then added, at the defendants’ request and over the plaintiffs’ objection:
“However, if you find that the defendant was confronted with a sudden emergency, not of his own making, and if you find that he used ordinary care and was still unable to avoid the violation because of such emergency, then, of course, his violation is excused. If you find that the defendant violated this statute and that the violation was not excused, then you must decide whether such negligence was a proximate cause of the occurrence * # * .
“If you find that the defendant violated this statute before or at the time of the occurrence, then the law presumes that he was negligent. However, if you find that the defendant was confronted with a sudden emergency not of his own making, and if you find that he used ordinary care and was still unable to avoid the occurrence because of such emergency, then the presumption is overcome. In deciding whether the presumption is overcome, you must weigh the presumption with all the evidence of the claim of sudden emergency, and if after so weighed you are unable to decide that the presumption has been overcome, then you must find that the defendant was negligent. And if you find that the defendant was negligent, you must then decide whether such negligence was a proximate cause of of the occurrence.”
The plaintiffs contend that the instruction should not have been given because 1) “sudden emergency” is an affirmative defense that is waived unless pleaded, GCR 1963, 111.3 and GrCR. 1963, 111.7, and defendants did not plead it, and 2) the instruction is not supported by the evidence. In opposition the defendants disagree that “sudden emergency” is an affirmative defense, contend that the instruction is supported by the evidence, and point to the jolt and Karsten’s looking through the rearview mirror as the emergency.
The doctrine of sudden emergency is a “logical extension of the ‘reasonably prudent person’ rule,” and as such is not an affirmative defense. Baker v. Alt (1965), 374 Mich 492, 496. As it was said in Baker, at p 496, the “test to be applied is what that hypothetical, reasonably prudent person would have done under all the circumstances of the accident, whatever they were.” Expression of the doctrine in its classic form is found in Walker v. Rebeuhr (1931), 255 Mich 204, 206 and Paton v. Stealy (1935), 272 Mich 57, 62:
“One who suddenly finds himself in a place of danger, and is required to act without time to consider the best means that may be adopted to avoid the impending- danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.” (Quoted from Huddy on Automobiles [8th ed], p 359.)
See, also, Myler v. Bentley (1924), 226 Mich 384, 386; Craddocks. Torrence Oil Company (1948), 322 Mich 510; Loucks v. Fox (1933), 261 Mich 338; and the jury instruction approved in Rossien v. Berry (1943), 305 Mich 693, 703. In later cases, some of which are cited below, the doctrine has been applied to avoid the harshness sometimes created by the assured-clear-distance and rear-end collision statutes. Under either application of the doctrine, the party invoking it is entitled to a proper instruction if there is any evidence indicating that an emergency within the meaning of the doctrine existed. McKinney v. Anderson (1964), 373 Mich 414, 420. If, on the other hand, such evidence is absent, it is error to instruct the jury that the party invoking the doctrine is not liable if they find that he acted reasonably during an emergency. See Baker v. Alt, supra, p 497. Implicit in these propositions is the authority of both the trial and appellate court to determine whether the condition said to constitute an emergency is indeed an emergency within the meaning of the doctrine. And, again, if the court determines that it is not, no instruction should be given. Before turning’ to this question as it is presented here, we note that the instant case does not involve the doctrine in its classic form — ■ that is, beset by a dilemma not of his own making, the motorist reasonably chooses under duress an alternative less fortunate than another — but rather the doctrine as it is used to define conditions that excuse a motorist from liability under the assured-clear-distance and rear-end collision statutes, thereby avoiding the harshness their application would otherwise create.
Violation of the assured-clear-distance statute is negligence per se, while violation of the rear-end collision statute is prima facie negligence. McKinney v. Anderson, supra, p 419. Whatever the practical differences attaching from this difference in labels, neither of these closely related statutes creates a liability that is indefeasible. As it has been said before, the motorist who collides with the rear of another automobile is not an insurer. Sun Oil Co. v. Seamon (1957), 349 Mich 387, 412. If an extraordinary condition is presented, and the motorist exercised the care of a reasonable man under the condition, he is excused from liability. Patzer v. Bowerman-Halifax Funeral Home (1963), 370 Mich 350; Hackley Union National Bank & Trust Company v. Warren Radio Company (1966), 5 Mich App 64. Thus, in Hendershot v. Kelly (1968), 11 Mich App 173, this Court approved the denial of a rear-end collision victim’s motion for a directed verdict as to the defendant’s liability under these statutes rvhere the evidence showed that a third automobile, positioned between plaintiff’s and defendants’ in the same lane, suddenly swerved to the left, revealing to the defendant motorist plaintiff’s automobile parked in the middle of the lane. The defendant had no inkling that plaintiff’s automobile was parked, or that it was even there.
However, not every difficulty that a motorist might face is a condition that will excuse him from liability if he has acted reasonably. The condition must be extraordinary. If it is ordinary, and he should expect it, then the motorist has acted unreasonably and contrary to the requirements of the statutes in not anticipating the condition. In Van den Heuval v. Views (1939), 291 Mich 670, a case tried without a jury, the defendant truckdriver was held liable for striking plaintiff’s automobile when, in an attempt to avoid a collision with an oncoming automobile about to turn left, he found that he could not slow his truck. The Supreme Court rejected his claim of emergency, saying, at p 672 :
“[H]aving passed over this crossing weekly for approximately three years, he was bound to know that approaching cars might make left-hand turns in the intersection and was required by law to have his truck under such control that he could avoid a collision with objects in plain view. The proximate cause of the accident was Plews’ negligence.”
Unquestionably, it is reasonable for the driver of a truck suddenly jolted by a bump in the road to look momentarily through the rearview mirror to make sure he has not lost his load. The jury thought so in the present case, if their verdict is any indication. Thus Karsten acted reasonably under the conditions, and should be excused from liability if the condition he faced is one that would excuse him from liability under the statutes. But tlie looking through a rearview mirror for one second, for whatever reason, is not a condition that excuses. The assured-clear-distance statute requires that a motorist remain “an assured clear distance behind.” This means, we think, a distance that allows a motorist travelling a street free of heavy traffic to look through the rearview mirror for one second without colliding with the rear of an automobile that suddenly stops or slows. This construction is dictated by everyday experience, since everyday experience teaches the need for frequent rearview observation, and keeping a safe distance is but a concomitant of that need. Or, in the words used above, looking through the rearview mirror is simply not an unexpected or extraordinary condition that a motorist might face. Since it is not such a condition, we hold that the defendant Karsten was not presented with a “sudden emergency” that would excuse violation of the assured-clear-distance and rear-end collision statutes. The instruction should not have been given.
Since Karsten admits colliding with plaintiff’s automobile, and the reason offered for his failure to stop in time is not one that would excuse him from liability, trial on remand shall be limited to the issue of damages. Conroy v. Harrison (1962), 368 Mich 310.
Beversed and remanded.
All concurred.
McKinney v. Anderson (1964), 373 Mich 414, 419; Patzer v. Bowerman-Halifax Funeral Home (1963), 370 Mich 350, 354; Budman v. Shore (1961), 363 Mich 458, 462.
MOLA § 257.627 (Stat Ami 1968 Rev § 9.2327).
MCLA § 257.402 (Stat Ann 1968 Rev §9.2102).
Similarly, in Humphrey v. Swan (1968), 14 Mich App 683, we said that the jury eould have found a sudden emergency to exist where, according to the defendant, the plaintiff started up from a traffic light, accelerating to three or so mph, and then for no reason apparent to the defendant suddenly stopped. The plaintiff denied starting up at all and therefore did not give a reason for a sudden and allegedly unwarranted stop. | [
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McGregor, J.
Defendant Edward Trudeau was convicted of second-degree murder, according to statute: CL 1948, § 750.317 (Stat Ann 1954 Rev § 28.549). Initially, defendant was arrested in the city of Detroit, for breaking and entering a United States Post Office. During his detention on this charge, investigation of a murder which had occurred at the Shaarey Zedek synagogue was continuing. Part of the evidence acquired in the murder investigation was a heel print of the killer. While the defendant was incarcerated, and apparently without probable cause to arrest him for the synagogue murder, police took his shoes for the purpose of comparing the shoe impression at the scene of the crime and the impression of the defendant’s shoes. The report of that study was subsequently admitted into evidence and the defendant was convicted. On appeal, as at trial, defendant alleges error in the admission of this evidence, claiming that it was improperly introduced in contravention of his Federal constitutional rights under the 4th, 5th, and 6th Amendments.
Defendant advances the argument that his right to be free from unreasonable search and seizure was violated. It is his contention that a warrant was not obtained and that, in any event, probable cause did not exist to arrest him and take his shoes.
Defendant cites People v. Carr (1963), 370 Mich 251, in support of his argument that the shoe impression was unlawfully obtained and, therefore, improperly admitted into evidence. In Carr, the defendant was in jail, serving a 30-day misdemeanor sentence, and was approached by police officers concerning a crime which had occurred in another county. Being unable to learn anything from defendant, the police — without a search warrant and without probable cause to believe that a felony had been committed by Carr — proceeded to make a thorough inspection of his automobile for the purpose of securing evidence which might possibly link the defendant to the out-county crime. Such a search and the resulting evidence were held inadmissible.
In the instant case, defendant was lodged in jail subsequent to his arrest for the crime of breaking and entering. The police were investigating the synagogue murder and had evidence linking a shoe print to the murderer. During their investigation, the defendant became a suspect; only his shoes, which were in open view, were taken for purposes of comparing their prints with the shoe prints found at the scene of the murder. The holding in Carr, supra, is different in vital respects. Defendant here was under arrest for a felony; no thorough search of his effects took place; only a shoe was taken for comparison, an intrusion which is minimal in light of the circumstances.
Defendant states that the recent case of Davis v. Mississippi (1969), 394 US 721 (89 S Ct 1394, 22 L Ed 2d 676), supports his argument that his fingerprints and shoes were unlawfully taken in violation of the 4th Amendment. The fact situation in obtaining the defendant’s fingerprints in that case is not analogous to the taking of defendant’s shoes here. In Davis, the police virtually conducted a dragnet of the local citizenry. At least 24 persons were fingerprinted and between 40 and 50 other youths were interrogated by the police. No attempt was made to employ procedures which might comply with the requirements of the 4th Amendment. There was neither a warrant nor probable cause for Davis’s arrest. At the time of his detention and when his fingerprints were taken, the police had no intention of charging Davis with the crime and were far from making him the primary focus of their investigation. The court was clear in emphasizing that the prints were the result of several unlawful detentions which resulted in repeated interrogation and the fingerprinting of the defendant. At one point, and without any probable cause to arrest him, the defendant was housed overnight in jail. In its decision, the court indicated that fingerprints might be taken from a person in certain defined circumstances although no prohable cause may exist to arrest that individual.
We find the inconvenience, harassment, and interrogation present in Davis were not present here. This defendant was lawfully detained on the felony arrest, and, while so incarcerated, only his shoes were taken for the purpose of correlating the prints thereof with the shoe prints taken at the scene of the synagogue murder.
The 4th Amendment protects an individual from unreasonable searches and seizures; it protects one’s right of personal privacy. To some degree this veil of privacy had already been pierced by defendant’s lawful detention. Therefore, considering all the circumstances, we find that defendant’s 4th Amendment rights have not been violated.
The 5th Amendment privilege against self-incrimination, as made applicable to the states by the 14th Amendment, protects an accused from being-compelled to testify against himself, or otherwise being- compelled to provide the state with evidence of a testimonial or communicative nature. Clothing has been consistently regarded as a physical fact, and the 5th Amendment is not a bar against that compulsion which makes a suspect the source of real or physical evidence. The distinction between physical and communicative facts is clearly drawn in Schmerber v. California (1966), 384 US 757 (86 S Ct 1826, 16 L Ed 2d 908).
The case of United States v. Wade (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149), governs petitioner’s assertions that his 6th Amendment right to counsel was violated. Wade reasoned that the defendant had a right to be advised of and have counsel present at every critical stage of the criminal proceedings. This case also indicates that the time of the taking and analysis of “fingerprints, blood sample, clothing, hair, and the like * * * ” is not a critical stage for purposes of requiring counsel. Consistent with that reasoning, we hold that a suspect’s right to counsel does not attach when his shoes are taken.
The Michigan case of People v. Davis (1969), 17 Mich App 615, in which both United States Supreme Court cases, Davis v. Mississippi, supra, and Schmerber v. California, supra, were cited as controlling guidelines, supports our decision and we cite it with approval.
Affirmed.
All concurred. | [
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Per Curiam.
Plaintiff and defendant separated •on October 23, 1957. A few months later the court entered a temporary support order requiring the defendant husband to pay $42 per week for the support of the five children of the parties. On March 17, 1959, a son, Patrick, was born to the plaintiff wife. On December 7, 1959, a pro confesso decree of divorce was entered which, inter alia, required defendant husband to pay $50 per week for the support and maintenance of the-sis children. The proposed decree of divorce was approved in writing by defendant’s attorney.-'
On ,J/uly 7, 1967,, plaintiff petitioned the court to modify the judgment of divorce in order to increase the support for Diane, age ten, and Patrick, age eight. At this time the defendant was no longer required to pay support for the remaining four children.' On September 5, 1967, plaintiff’s petition to modify the judgment of divorce was granted and the court entered an order modifying the judgment of divorce by requiring the defendant to pay the sum of $15 per week- for the support and maintenance of Diane and $15 per week for the support and maintenance of Patrick.
On- September. 11, 1968, defendant husband filed a petition for modification of decree of divorce arid/or judgment contending that Patrick was not his "child and that plaintiff practiced a fraud upon the court by “leading the court to believe that Patrick, born March 17, 1959, was the child of this petitioner.” A testimonial hearing was conducted in which the defendant husband denied that he was the father of Patrick. Additionally, there was a statement attributed to the plaintiff by one of the older children of the parties who contended that at one time her mother had stated that the defendant was not the father of Patrick. This same witness testified to various visitations by the defendant to the plaintiff from the date of the separation up to the date that the decree of divorce was entered. The plaintiff testified that she made the statement concerning the paternity of Patrick to her daughter, but explained it in the following manner:
“Q. Did you tell Darline that Victor was,')not Patrick’s father? • V'
“A. Yes sir, I had been very angry and-frustrated and rather than have people remember how -stupid and afraid I was of him, I would rather have them think I was a loose woman than to,, admit thathAyiaS b.lS f 3/Í13L61*
“Q. Why did you tell that to Darline?
“A. Well, Darline and I do not always agree on many things. She was siding with her father, and out of it all, I just made a statement that was not .true.”
The trial court made a specific finding that-tbie testimonial record was not sufficient to overcome the presumption of legitimacy and declined to modify the amended judgment of divorce. ‘ '
After review of the record, we affirm the finding of the trial court. The record is most convincing in light of the rule which forbids either a husbáiid or wife from testifying as to access or ncmaccess;-of repetition in court of their out-of-court declarations in the context of a proceeding concerning the legitimacy of a child. This rule applies even'where the child was conceived after a separation of the parties which precedes divorce. See Maxwell v. Maxwell (1969), 15 Mich App 607 (leave to appeal denied 381 Mich 815).
Affirmed. Costs to appellee.
By subrule 518.1, GOB 1963, and RJA § 112 (MCLA § 600.112; Stat Ann 1962 Rev § 27Á.112), effective January 1, 1963, all domestic relations matters are now disposed of by “judgment” rather than by “decree.” | [
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Y. J. Brennan, J.
On September 30, 1968, defendant Jesse Kennedy was found guilty by a jury of receiving money from the earning’s of a prostitute without consideration. MCLA § 750.457 (Stat Ann 1954 Rev § 28.712). The trial court denied his motion for a new trial, and he appeals.
The information charged defendant with “knowingly accept [ing], receiv[ing], levy[ing] and appropriat[ing] certain money, of an undetermined amount, without consideration from the proceeds of the earnings of a certain female person engaged in prostitution, to-wit: * * * .” In its final instructions to the jury, the trial court recited the entire provision of MCLA § 750.457, of which the crime of receiving money from a prostitute is only a part:
“Any person who shall knowingly accept, receive, levy or appropriate any money or valuable thing without consideration from the proceeds of the earnings of any woman engaged in prostitution, or any person, knowing a female to be a prostitute, shall live or derive support or maintenance, in whole or in part, from the earnings or proceeds of the prostitution of said prostitute, or from monej^s loaned or advanced to or charged against her by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 20 years. And such acceptance, receipt, levy or appropriation of such money or valuable thing, shall, upon any proceeding or trial for violation of this section, be presumptive evidence of lack of consideration.”
Defendant contends that the reading of the statute in its entirety broadened the prosecution’s base of proof and thereby permitted the jury to convict him of a crime with which he was not charged. His contention is without merit. It is true of course that the statute defines different ways the crime can be committed and that the defendant was required to defend only on the one charged in the information. However, the court made it perfectly clear, both in reading the information and in explaining the elements of the crime charged, that the defendant could only be convicted of receiving money from a prostitute.
During the trial, a banderilla, or picador’s lance, allegedly used by defendant to threaten the complainant, was left in the plain view of the jury without being formally offered into evidence. According to an arresting officer, the banderilla was found mounted on a wall of the defendant’s house at the time of his arrest. Defendant contends his conviction should be reversed in that (1) the banderilla was seized illegally and (2) displaying the banderilla without formally offering it into evidence denied him a fair trial. These contentions are equally unavailing, even if it is assumed that the banderilla was used as evidence in violation of the exclusionary rule of Mapp v. Ohio. Defendant did not move for its suppression before or during trial and consequently cannot now complain of an illegal search and seizure. People v. Ferguson (1965), 376 Mich 90; People v. Wilson (1967), 8 Mich App 651. Nor can defendant complain of prejudice from its being displayed before the jury. Defense counsel repeatedly referred to the banderilla in his cross-examination, without once objecting to its presence. The failure to object precludes review. People v. Ivy (1968), 11 Mich App 427; People v. Omell (1968), 15 Mich App 154.
Defendant contends a new trial should be granted because newly-discovered evidence indicates that the complainant — the prostitute in question — perjured herself. Under People v. Bauman (1952), 332 Mich 198, a new trial will be granted for newly-discovered evidence only if there is a showing: (a) that the evidence is newly discovered; (b) that the evidence is not merely cumulative; (c) that the evidence is such as to render a different result probable on re-trial; and (d) that the defendant could not with reasonable diligence have produced it at trial. The newly-discovered evidence of perjury in the present case involves testimony unrelated to the defendant’s guilt, and at best would serve only to impeach the complainant’s credibility. A different result on retrial seems most unlikely.
Defendant’s other allegations of error are either frivolous or unfounded by the record and therefore do not merit discussion.
Affirmed.
All concurred.
(1961), 367 US 643 (81 S Ct 1684; 6 L Ed 2d 1081). | [
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Danhof, J.
On May 3, 1968 Dearborn Schools Operating Engineers Association petitioned the Michigan Labor Mediation Board for an election of a bargaining agent in a nnit of employees of the School District of the City of Dearborn. The bargaining unit was described in the petition as “all operating engineers, excluding all other maintenance, operational, clerical, transportation, and cafeteria employees, secretarial and office personnel, supervisory and teaching employees.”
On October 31,1968 the Michigan Labor Mediation Board (hereinafter referred to as MLMB) directed the election to be held and designated the bargaining unit as “all engineers and assistant engineers classified by the employer as engineer A, B, C, D, or E, EXCLUDING all other supervisors, teaching personnel and all other employees.” On November 19, 1968 leave to appeal was filed in this Court by the plaintiff, School District of the City of Dearborn, and on March 4, 1969 we entered an order granting the application for leave to appeal.
In its opinion of October 31,1968 the MLMB made certain findings of facts which have been accepted by the parties and, in addition, are supported on the whole record by competent material and substantial evidence. These facts are:
(1) The plaintiff, School District of the City of Dearborn is a public employer within the meaning of PA 1947, No 336 as amended by PA 1965, No 379, Public Employment Relations Act (hereinafter referred to as PERA), MCLA § 423.201 et seq. (Stat Ann 1968 Rev § 17.455[1] et seq.);
(2) That the engineers and assistant engineers are public employees within the provisions of § 2, PERA, MCLA § 423.202 (Stat Ann 1968 Rey §17.455 [12]);
(3) That the engineers and assistant engineers are supervisors;
(4) That the Dearborn Schools Operating Engineers Association is a labor organization within the provisions of § 12, PERA, MOLA § 423.212 (Stat Ann 1968 Rev § 17.455[2]) and §9, PERA, MOLA §423.209 (Stat Ann 1968 Rev § 17.455 [9]).
This Court is bound by the facts as they were determined by the MLMB.
The issue presented in this appeal is whether under the provisions of PERA, supervisors (the engineers and assistant engineers) who are public employees constitute a proper collective bargaining unit and are entitled to be represented by representatives of their own choosing.
It is clear that one of the purposes of PERA is “to declare and protect the rights and privileges of public employees * * * ” (Preamble to the PERA). This policy has been effectuated by permitting public employees to engage in collective bargaining. MOLA §423.209 (Stat Ann 1968 Rev § 17.455[9]) states:
“It shall be lawful for public employees to organize together or to form, join or assist in labor organizations, to engage in lawful concerted activities for the purpose of collective negotiation or bargaining or other mutual aid and protection, or to negotiate or bargain collectively with their public employers through representatives of their own free choice.”
The legislature designated the MLMB as the agency to determine the appropriate bargaining units, MOLA § 423.213 (Stat Ann 1968 Rev § 17.455 [13]). The determination of the bargaining unit is based upon criteria set forth in PA 1939, No 176, § 9e as last amended by PA 1965, No 282, MCLA § 423.9e (Stat Ann 1968 Rev § 17.454[10.4]). This section is a part of the Michigan Labor Mediation Act (hereinafter referred to as MLMA), MCLA § 423.1 et seq. (Stat Ann 1968 Rev § 17.454 [1] et seq.) and states:
“Sec. 9e The board, after consultation Avith the parties, shall determine such a bargaining unit as will best secure to the employees their right of collective bargaining. The unit shall be either the employees of 1 employer in 1 plant of business enterprise within this state, not holding executive or supervisory positions, or a craft unit, or a plant unit, or a subdivision of any of the foregoing units: Provided, however, That if the group of employees involved in the dispute has been recognized by the employer or identified by certification, contract or past practice, as a unit for collective bargaining, the board may adopt such unit.”
Plaintiff and defendants disagree as to the correct' interpretation of § 9e. Plaintiff argues that PERA, when read in conjunction with this section and with other sections of the MLMA, prohibits supervisory personnel of public employees from organizing and bargaining collectively. Defendants maintain that § 9e, cannot be read so as to prohibit supervisors from constituting a bargaining unit and from electing a bargaining representative.
An examination of the structure of § 9e shows that there are four choices of bargaining units; (1) a unit consisting of all of the employees employed in one plant or business enterprise within the state, (2) a craft unit, (3) a plant unit, and (4) a subdivision of any of the foregoing units.
The language in § 9e to which plaintiff points, “ * * * not holding executive or supervisory positions, * * * ” is a modification of only the first type of unit listed. It does not modify the remaining units defined, nor is it in and of itself a prohibition against executive or supervisory employees constituting a bargaining unit. Defendants correctly point out that those employees in private employment who are employed as executives or supervisors are not afforded the protections of MLMA, but this exclusion of executives or supervisors is not because of the provisions of § 9e, but rather, because of § 2 of MLMA, MCLA § 423.2(e) (Stat Ann 1968 Eev § 17.454[2] [e]). This section defines an “employee” under MLMA, but it expressly states that an employee under MLMA shall not be “ * * * any individual employed as an executive or supervisor, * * * .” In this regard it is interesting to note that § 9e of MLMA, MCLA § 423.9(e) (Stat Ann 1968 Eev § 17.454 [10.4]) was adopted by the legislature in 1947 (PA 1947, No 318), whereas the definition of employee, MCLA § 423.2(e) (Stat Ann 1968 Eev § 17.454[2] [e]) was not adopted until 1949 (PA 1949, No 230). Therefore, prior to 1949 supervisors could organize in a bargaining unit, and in fact prior to 1947 could be in the same unit, in the same plant, with employees who were not supervisors. Thus, we conclude that § 9e, (MCLA § 423.9e [Stat Ann 1968 Eev § 17.454(10.4)]) does not prohibit those employees engaged in executive or supervisory positions from organizing, but only that they shall not be included in a bargaining unit containing non-supervisory employees in the same plant or business enterprise.
Section 2 of PEEA, MCLA § 423.202 (Stat Ann 1968 Eev § 17.455 [2]) defines a public employee. Nothing in this section exempts supervisory employees, such as those in this case, from being public employees. This is in sharp contrast to the definition of an “employee” contained in MCLA § 423.2 (e) (Stat Ann 1968 Eev § 17.454[2] [e]).
Thus, the engineers and assistant engineers of the plaintiff district are public employees, and as such are allowed to organize and to elect representatives to engage in collective bargaining with the plaintiff, § 9 PERA, MCLA § 423.209 (Stat Ann 1968 Rev §17.455 [9]).
Plaintiff argues that § 13 PERA, MCLA § 423.213 (Stat Ann 1968 Rev § 17.455 [13]) indicates an intention on the part of the legislature to prohibit public employees who are supervisors, other than firemen, from organizing and bargaining collectively. Section 13 states in part:
“Provided, That in any fire department, or any department in whole or part engaged in, or having the responsibility of, fire fighting, no person subordinate to a fire commission, fire commissioner, safety director, or other similar administrative agency or administrator, shall be deemed to be a supervisor.”
Plaintiff misconstrues § 13. This section simply allows the MLMB to include in a bargaining unit with nonsupervisory personnel those persons in a fire department who might otherwise be classified as supervisors. Fire departments are usually organized on quasi-military lines and there are numerous persons involved in the chain of command. The legislature has determined that in fire departments these persons shall not be deemed supervisors and thus are not required to have separate bargaining units. This is all this provision does and to read anything further into it would be to engage in obvious judicial legislation.
Plaintiff further argues that it is against public policy to allow public employees who are supervisors, such as those involved in the instant action, to organize. As we stated in City of Escanaba v. Michigan Labor Mediation Board (1969), 19 Mich App 273, the legislature by the enactment of PERA has determined what the public policy of this State will be in regard to allowing public employees to organize. PERA was passed pursuant to Const 1963, art 4, § 48 which directly authorizes the legislature to “enact laws providing for the resolution of disputes concerning public employees, * * * .” If plaintiff is in disagreement with the current public policy of this State his remedy lies with the legislature and not with the courts.
"We have further examined the order of the MLMB creating the bargaining unit and find that the employees involved have a common interest in their terms and conditions of employment so as to warrant their inclusion in a single unit to choose a bargaining agent, Uyeda v. Brooks (CA 6, 1966), 365 F2d 326.
We find no error in the decision of MLMB and an order will issue enforcing the MLMB’s order of October 31,1968.
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Danhof, J.
Defendant was convicted by a jury of attempted armed robbery of the Ideal Beer Store, CLS 1961, § 750.529 (Stat Ann 1969 Cum Supp § 28.797) and CL 1948, § 750.92 (Stat Ann 1962 Rev § 28.287), and sentenced to a term of four to five years in prison.
On appeal he alleges several errors in the conduct of the trial. First he argues that it was error to reveal before the jury that the defendant refused to make a statement to the police.
At the trial the prosecutor questioned a police detective as follows:
“Q. Now, what was this conversation about?
“A. The conversation was relative to the possibility of his being involved in an attempted armed robbery at the Ideal Beer Store.
“Q. All right, and what did the defendant say?
• “A. He didn’t admit anything to me concerning the robbery.”
The prosecutor questioned another police officer as follows:
“Q. Did you ask him another question?
“A. I asked him again did he understand his rights and he didn’t answer. And I said, ‘Having these rights in mind, do you wish to talk to us now?’ And he shook his head no.”
No objection was made to the questions or answers by defense counsel and no motion to strike the testimony or request for curative instructions was made. The prosecutor did not comment on defendant’s silence and the court gave the usual cautionary instructions relative to defendant’s failure to take the stand. People v. Webb (1968), 13 Mich App 625, is directly in point. A timely objection at trial to the introduction of allegedly improper evidence is a prerequisite to appellate review. See also People v. Rudder (1970), 21 Mich App 201.
Defendant also alleges that references to a polygraph examination, polygraph room, and another offense constituted a miscarriage of justice. The allegedly objectionable testimony follows:
Direct Examination
“By Mr. Dwan:
“Q. What is your occupation, Mr. Camburn?
“A. Detective, Kalamazoo Police Department.
“Q. How long have you been a detective for the Kalamazoo Police?
“A. Nine years.
“Q. All right, what are your duties?
“A. Polygraph examiner.
“Q. Did you have occasion to talk to the defendant on September 6, 1968?
“A. Yes, I did.
“Q. And where was that?
“A. At the police station.
■ “Mr. Dwan:- May we approach the bench, your Honor ?
“The Court: Surely.
(.Attorneys approached the tench.)
“Q. Now, the time ■ that you spoke with the defendant, that was not during a polygraph examination was it?
“A. No.
“Q. "Were you functioning as a polygraph examiner at that time?
' “i. No.
“Q. Do you know who Bruce Lamson is?
“A. Yes.
“Q. Is he in court today? •'
“A: Yes, he is. That’s the defendant.'
“Mr. Divan: May the record indicate the witness has correctly identified the defendant?
“The Court: All right, it may so indicate.
“Q. Now, what was this conversation about?
“A. The conversation was relative to the possibility of his being involved in an attempted armed robbery at the Ideal Beer Store.
“Q. All right, and what did the defendant say?
“A. He didn’t admit anything to me concerning the robbery. He acknowledged that he was arrested for this offense. I talked to him about the Bunt-line Special that had been obtained from his apartment. He told me he did have that in his possession, however, he would not tell me who he got it from because he didn’t want to get anybody in trouble. 1 told him previously that the Buntline Special that had been picked up had been implicated in another offense.
“Mr. Dwan: I have no fnrther questions of this witness at this time, your Honor.
“The Court: All right, any questions, Mr. Scott?
^Cross-Examination
“By Mr. Scott:
“Q. "Where were you in, the police department when he gave this ‘statement ? ■ - -
■“jL Sir!
“Q.' Where were' you in the police department when he gave this statement?
“A. I’m not sure. It was.either in the polygraph room orr:in the jail.; I talk to many people in this capacity many timés in the polygraph room; many times in the jail itself. There’s a room in there that we use, too. I don’t know on this particular instance which it was. . .." ‘
“Q. If it was in the polygraph,' why would’it have been there?
“A.. That’s my ofíicé.
“Mri Scott: Okay. I have no further "questions. “The Court: That’s all.
“Mr. Dwan:' I havé nothing further, your Honor.
• (Witness stepped doivn.)”-
There cah.be no., doubt at present that in-this jurisdiction -the results of polygraph examinations are inadmissible, People v. Frechette (1968), 380 Mich 64, 68. ’However, ’ defense counsel made no objection at- trial- to the testimony of detective Oamburn. Under such circumstances, and considering the whole of detective Camburn’s testimony, wedó not find it to have such a prejudicial effect, if any, as to constitute a miscarriage of justice, People v. Tyrer. (1969), 19 Mich App 48.
■Thé critical questions on this appeal concern the testimony of defendant’s 11-year-old- sister, Paula, and- the prosecution’s efforts to either discredit or contradict-it. - The prosecution-apparently hoped to establish that the ‘hat- with fringes worn ’by- the wBuld-bé bandit,'Which blew off as he fled; belonged to- defendants sister.- When called Ms'a-witxi'ess for the people, Paula said that the hat was not hers and did not look like her hat.
The prosecutor then recalled officer Hicks to testify as to what Paula had previously said about the hat. This colloquy then took place between Mr. Scott, the defense attorney, and Mr. Dwan, the assistant prosecuting attorney:
“Mr. Scott: Just a minute, your Honor, doesn’t that call for hearsay? It’s his witness and he’s asking to impeach his own witness with more testimony. How can you do that with hearsay evidence?
“Mr. Dwan: There’s a statute which allows impeachment of the people’s witnesses, which we are using at this time.
“Mr. Scott: Even if he does so, it wasn’t within the presence of the defendant, and I’m a little hard-pressed to make a very big issue out of it but this is an 11-year-old child. I don’t think that this is really necessary to proceed with.
“Mr. Dwan: Your Honor, it’s an 11-year-old child and her brother is the defendant and if she does not tell the truth on the stand we have a right to impeach her. If she testifies to something she said different at this time, it certainly is admissible.
“The Court: Well, I think I’ll let him answer. You’ve got a peculiar situation there but — all right, you can answer it.
“A. The little girl identified that hat there as being Their Mexican straw hat.’ ”
On appeal defense counsel argues (a) that defendant’s sister was not a res gestae witness and so could not be impeached under CL 1948, § 767.40a (Stat Ann 1954 Rev § 28.980[1]); (b) that if she was a res gestae witness, no proper foundation was laid for her impeachment; and (c) that regardless of (a) and (b), the trial court failed to instruct the jury that the impeachment testimony of . officer Hicks as to the prior inconsistent statement of Panla Lamson was being admitted solely for the purpose of impeachment and not as substantive evidence. Defense counsel did not request such an instruction, and in fact when asked by the trial court if anything had been overlooked following the giving of instructions responded, “no.” However, appellate defense counsel quite properly cites People v. Eagger (1966), 4 Mich App 449, for the proposition that even in the absence of a request to charge the jury, such an omission constitutes reversible error.
On appeal the prosecution no longer contends that Paula was a res gestae witness and therefore subject to impeachment. Bather, the prosecutor’s position now is that Paula was not impeached, merely contradicted; and that this is permissible on the authority of People v. Lee (1943), 307 Mich 743.
The Court in the Lee case said:
“The rule against impeaching one’s own witnesses does not mean that the party is bound to accept such testimony as correct. He may prove the truth of material facts by other testimony, even though the effect thereof is directly to contradict the testimony of his own witnesses.”
We do not construe that language to mean that the prosecutor could put the police officer on the stand to impeach Paula’s testimony by testifying to her prior inconsistent statement. It would allow the prosecution to introduce testimony, if available, as to the ownership of the hat even though it contradicted Paula’s testimony. For example, testimony of a store clerk saying she remembered Paula buying a hat, and this was the hat, would have been admissible.
It follows that we must reverse this case because hearsay testimony was admitted over objection which was prejudicial to the defendant.
Defendant also alleged that the trial court improperly instructed the jury. -No objection: was made at the time, and we find no error in- the introductory remarks of the .trial court, despite defense counsel’s criticism of them on appeal.
Of importance, though, is defendant’s assertion .that the trial court did not instruct on the essential elements of the crime of attempted armed robbery. The trial court read the statute defining armed robbery to the jury and told them that the defendant was charged with attempting to Violate that statute. However, he did not charge the jury on the necessity of finding an overt act to support a conviction for attempt to commit a crime. People v. Bowen (1968), 10 Mich App 1. While this omission does not always constitute reversible error, upon retrial the instruction should be given. People v. Gardner (1968), 13 Mich App 16.
Reversed and remanded for a new trial.
All concurred. | [
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Per Curiam.
On the evening of December 16, 1963, at approximately 10 p.m., a car driven by defendant Hickman struck the rear of a car parked on 12th street in the city of Detroit. The parked car was occupied by plaintiff Bernice Gray. Plaintiff was injured and, with her husband, sued defendant Hickman in the Wayne county circuit court. The jury returned a verdict of no cause of action. Following the denial of their motion for new trial, plaintiffs appeal, contending that the verdict is contrary to the evidence.
At the point of impact 12th street is a one-way street, with three lanes for moving traffic and one for parking. Plaintiff testified that immediately before the accident she left a restaurant located on 12th street and then entered the parked car. Plaintiff claimed that the car in which she was sitting when struck was parked at the curb of 12th street. Defendant Hickman testified that before the accident he was traveling at 20-25 miles per hour in the lane adjacent to the parking lane. Hickman further testified: “This car was parked, double parked there, no lights on it, and I hit a pack of ice and skidded into the car; that’s all.” It also appears from the record that plaintiff was alone in the parked car when the accident occurred,
At the close of the proofs, the trial court instructed the jury on both the issue of the claimed negligence of defendant and the alleged contributory negligence of plaintiff. Also, by agreement of the parties, the jury was instructed to return a verdict for plaintiff if it found that the car in which plaintiff was seated was parked in the curb lane and that it was struck in the rear by defendant.
In light of the parties’ conflicting testimony, the question of how and why the accident occurred was for the jury. Coburn v. Goldberg (1949), 326 Mich 280. It is apparent from the verdict that the jury chose to believe defendant and found as a fact that the vehicle in which plaintiff was sitting was double parked when struck by defendant. In light of this finding, the jury could then, on the evidence presented, properly find defendant free from negligence. We will not substitute our judgment for that of the jury. Schmidt v. Robinet (1965), 2 Mich App 45; Edwards v. Kreps (1969), 17 Mich App 182. Also, in our opinion, the jury could properly conclude from the evidence that plaintiff failed to exercise due care in that she entered and remained alone in an unlighted car at night while that car was parked on a snow covered street in a moving lane of traffic. Hendershot v. Kelly (1968), 11 Mich App 173.
Affirmed. Costs to defendants. | [
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McGregor, J.
On November 26, 1959, the badly beaten body of Robert Johnson was found in the bathtub of his apartment. The medical examiner was unable to give the exact date of death, other than that it occurred between November 12 and 20. After police officers visited the victim’s apartment, on November 26, they proceeded to a woman’s apartment where the defendant was visiting. The woman informed the officers that the defendant was in her apartment. After defendant noticed the police officers, it is disputed whether he ran to another room in the apartment, or said for the officers to wait and then went to another part of the. apartment. It was then that one of the officers pursued the defendant into the bedroom and discovered that he was holding a billfold containing the driver’s license of the victim. Defendant was arrested and searched, which search yielded 'the billfold belonging to the victim, $800 in cash, and two key rings containing the keys to the victim’s apartment and his automobile. In the pocket of a coat lying in the apartment were found three bank books belonging to the deceased. The woman house-owner did not object to the search.
Defendant was tried before a jury for the murder of the victim. At trial, the articles taken from defendant at the time of his arrest were admitted into evidence. Defense counsel made no objection to their admission at trial, but prior to trial a motion made by defense counsel for suppression of this evidence had been denied by the trial court.
At trial, the court sustained defense counsel’s objection to the admission of defendant’s written statement, although testimony relating to incriminating statements made by defendant to police officers while in custody was admitted into evidence. Defendant appeals his conviction of second degree murder.
Defendant contends that under Jackson v. Denno (1964), 378 US 368 (84 S Ct 1774; 12 L Ed 2d 908), and People v. Walker (1965), 374 Mich 331, it was the duty of the judge to determine the issue of voluntariness of his confession, and that it constituted reversible error to submit that issue to the jury. While we realize the rule in Walker, supra, was retroactive, the Michigan Supreme Court said, in People v. Farmer (1968), 380 Mich 198, 205:
“While .the rule announced in Walker was made retroactive, it does not follow that in every trial prior to Walker in which a confession was admitted in evidence a defendant is now automatically entitled to a Walker-type hearing. See, for example, People v. Fordyce (1966), 378 Mich 208.”
' We must examine the circumstances to determine if the defendant falls within the rule in Farmer, supra, and Fordyce, supra. In Fordyce, the defendant was not entitled to a Walker hearing; his confession was claimed to be involuntary only on the grounds that the defendant (1) was not advised of an absolute constitutional right to remain silent, and (2) was not advised of the right to counsel at a time when' he 'was being held after arrest and prior to judicial proceedings, since prior to Escobedo v. Illinois (1964), 378 US 478 ( 84 S Ct 1758; 12 L Ed 2d 977), and Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974), these rights did not apply in Michigan.
The circumstances herein do not warrant a Walker hearing. The defendant was arrested and immediately taken to the police station. He was informed that he did not have to say anything if he didn’t want to, and was asked if “he would care to tell us about what happened the day of the fight.” He thereupon proceeded to relate, basically in narrative form, the events which implicated him. There is no intimation or suggestion of any coercion being used by police officers to elicit the confession.
Defendant asserts that he was not specifically told that the police were interrogating him for the murder of the deceased, since when he was arrested he was told that he was “under arrest for investigation.” Examination of the record. reveals that defendant was cognizant of the circumstances and charges at the time of his confession. In fact, the police, albeit after the confession was given, asked the defendant if he knew the victim was dead, to which he allegedly replied, “I didn’t know that he was dead, hut I figured he was, the way you fellows talked.”
Defendant also asserts that there was no probable cause to arrest him according to the statute. A police officer may arrest someone without a warrant, when a felony has in fact been committed, and the officer has reasonable cause to believe that such person has committed it. The arresting officer’s belief that probable cause exists is measured by the circumstances existing at the time of the arrest. Beck v. Ohio (1964), 379 US 89 (85 S Ct 223; 13 L Ed 2d 142). See People v. Ward (1924), 226 Mich 45, and Hammitt v. Straley (1953), 338 Mich 587.
The facts reveal that the officer had probable cause to arrest this defendant. The police officers were aware of the homicide occurring in the apartment building where defendant was subsequently arrested; the officers were aware that defendant was a frequent visitor to the victim’s apartment and had been informed by the victim’s neighbor that he had seen the defendant at the deceased’s apartment several days prior to November 20th. The police were also aware that the defendant had been seen driving the victim’s car shortly after having been seen with the deceased, in the deceased’s apartment. When the police officers arrived at the apartment where defendant was arrested, the defendant apparently tried to avoid the police. The defendant’s version was that, upon seeing the police, he said, “Wait a minute,” and went to another part of the apartment. The police version was to the effect that defendant ran to the rear of the apart ment upon seeing the police. The police also allege that defendant was apprehended in the rear room and that, upon being escorted to the front door, the defendant attempted to give $800 in cash, in large bills, to another party, saying, “Here, this is yours.” This person allegedly replied, “They are not mine, I never saw it before.” In 5 Am Jur 2d, Arrest, § 45, p 737, it is stated:
“Plight of a suspect is an important circumstance in the knowledge of the officer, tending to justify arrest without a warrant.”
We find that, from the facts set forth and the reasonable inferences to be drawn from the information known, probable cause existed for the defendant’s arrest. People v. Harper (1962), 365 Mich 494, 500.
Defendant argues that his arrest was unlawful because he was not informed of the charge against him, pursuant to CL 1948, § 764.19 (Stat Ann 1954 Rev § 28.878).
“When arresting a person, without a warrant, the officer making the arrest shall inform the person arrested of his authority and the cause of the arrest.”
When defendant was arrested, he was advised that he was under “arrest for investigation.” Although the arresting officer did not comply with the mandate of the statute, the defendant herein was, through those words and the circumstances surrounding the arrest, sufficiently informed that he had indeed been apprehended and arrested. People v. Wolfe (1967), 5 Mich App 543, 552. In any event, any error here committed was not such as to taint the subsequent prosecution.
We have examined the other errors claimed by-defendant and are persuaded that there has been no miscarriage of justice.
Affirmed.
All concurred.
CL 1948, § 750.317 (Stat Ann 1954 Bey § 28.549). | [
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R. B. Burns, J.
This is an appeal from a circuit court’s action reviewing an appeal from the circuit court commissioner.
In 1949 plaintiff (seller) and the defendants (buyers) entered into a land contract for the sale and purchase of a two-story building. The defendants agreed to pay $10,000; $1,000 down and $100 per month. By supplemental agreement the plaintiff eliminated interest on the unpaid balance in return for the free use of the building’s first floor.
The defendants paid the $1,000 down payment and a total of 24 payments at $100 per month through March of 1951. For the next 10 years defendants made payments of $50.00 per month. The plaintiff paid taxes and assessments on the property from 1952 through 1964. The plaintiff instituted summary proceedings before the circuit court commissioner on the theory that the land contract was abandoned in 1951 and that the defendants had been tenants and had not paid rent since 1962.
The circuit court commissioner ruled that the plaintiff failed to prove termination of the contract and a creation of the relationship of landlord and tenant. The plaintiff appealed the judgment to the circuit court.
Plaintiff’s complaint on appeal to the circuit court was stated in three counts. Count 1 was in effect an application to remove a cloud on plaintiff’s title. Count 2 asked a judgment against the defendants for rent. Count 3 claimed the judgment of the circuit court commissioner was contrary to law and fact.
The circuit court held that a valid land contract existed which had been paid in full, but that the plaintiff was entitled to reimbursement for taxes paid, plus interest on the taxes. The opinion further provided that the circuit court was to retain jurisdiction and, in the event the defendants did not pay the taxes, the plaintiff could apply to the court for forfeiture of the land contract. It also provided that the defendants could apply for specific performance if plaintiff did not tender them a deed.
Defendants failed to submit a judgment to the circuit court or to pay the taxes. Plaintiff filed a motion in the circuit court, tendered a warranty deed, asked that the court grant him a lien on the property for the taxes and asked the court to direct the manner of enforcement of the lien. The court entered a judgment in the case wherein the findings stated in the opinion were reiterated, and ordered the property sold under the direction of the circuit court commissioner. The property was sold at public auction and was purchased by the plaintiff.
Between the date of the judgment and the date of the sale defendants appealed the ruling of the circuit court to this Court. Defendants claim the circuit court did not have the power to enlarge an appeal from the circuit court commissioner based on summary proceedings to terminate tenancy for nonpayment of rent into an action to remove a clond on the title, for reimbursement of taxes paid by the vendor and for foreclosure of a land contract. We agree.
Appeals from circuit court commissioners to the circuit courts are governed by GCR 1963, 701 and 702. GCR 1963, 701.5(2) states:
“The claim of appeal shall designate the order, determination, decision, sentence, action, judgment, or decree appealed from, together with a plain concise statement of the reasons and grounds for appeal, to which the appeal shall be limited.”
GCR 1963, 701.10 states:
“Determination of the Appeal. Unless otherwise provided by law, review in the circuit court is to be a retrial of issues upon evidence to be introduced in the reviewing court. The circuit court may render any judgment or make any order which should have been rendered or made in the lower court, and may grant such other relief as may be required for the just disposition of the appeal.”
In Kremser v. Listh (1951), 330 Mich 549, summary proceedings were instituted before the circuit court commissioner for one month’s rent. On appeal, the circuit court found rent was not due for the period alleged before the circuit court commissioner, but that two month’s rent had accrued during the appeal period, and granted plaintiff a judgment. The Supreme Court held that the circuit court had exceeded its authority, and stated, p 552:
“In a review of the action of the circuit court commissioner the jurisdiction of the circuit court is no greater than that of the commissioner.”
In Wehmeier v. Young (1967), 9 Mich App 65, 68, 69, the Court stated:
“Summary proceedings for dispossessing an occupant of premises are wholly statutory and the judg ment rendered is by an officer of special, local and limited jurisdiction. A summary proceeding is of a legal rather than equitable nature. Equitable defenses are not permissible. The proceeding is limited in its nature. Further, jurisdiction in summary proceedings does not extend to determine the title to real estate. Within this rule, a homestead right involves a question of title. 11A Michigan Pleading and Practice (2d ed), § 88.03 at p 236.
“Although summary proceedings under the statute to recover possession of land are tried de novo, the circuit court on appeal has no greater authority or jurisdiction than the circuit court commissioner.”
Plaintiff on appeal was limited to the grounds set forth in his complaint on appeal and the circuit judge did not have the authorty to render a judgment on a different theory or to enlarge the scope of the case.
The judgment of the circuit court is reversed, the sale is set aside and the case is remanded for entry of a judgment in accordance with the ruling of the circuit court commissioner. Costs to defendants.
All concurred. | [
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Rood, J.
Plaintiff brought suit in the Kalamazoo County Circuit Court against defendant for labor and materials furnished under contracts both written and oral for the construction of a Dog ’n Suds Drive-In restaurant in Parchment, Michigan, after its request for payment was refused by the defendant. Defendant by way of defense, as well as in a counterclaim, alleges that the plaintiff failed to com píete the building on time, thus causing defendant loss of profits, and that there were various omissions and deficiencies in the construction.
The trial court, sitting without a jury, rendered an eight page opinion wherein he awarded the plaintiff a judgment in the net amount of $14,377.38 plus interest. The judgment was determined by deducting from plaintiff’s claim the portion of defendant’s counterclaim which was allowed in the amount of $1,920.
On appeal, the defendant claims that the trial court committed error by failing to comply with OCR 1963, 517.1. The defendant asserts that the trial court did not deal with each item set forth in the counterclaim separately as demanded by the defendant. GCR 1963, 517.1 requires the trial court to make “pertinent findings and conclusions upon the contested matters without over elaboration of detail or particularization of facts”.
The purpose of Rule 517.1 like Fed Rules Oiv Proc, 52(a), after which it is modeled, is primarily to aid the appellate court by giving it a clear understanding of the grounds for the trial court decision. Dauer v. Zabel (1967), 9 Mich App 176, 184; Nicpon v. Nicpon (1967), 9 Mich App 373.
Unlike the situations which faced the Court in Zabel and Nicpon, where the Court failed to find even a minimum compliance with GCR 1963, 517.1, we find after a careful review of the record and examination of the trial court’s opinion that the trial court has at least minimally complied with the rule and that his findings are sufficient to indicate the factual basis for his ultimate conclusions and are not “clearly erroneous”. GCR 1963, 517.1; Zitomer v. Kelmenson (1965), 375 Mich 206; Lacey v. City of Warren (1967), 7 Mich App 105, 107. See 2 Honig man & Hawkins, Mich Court Rules Annotated (2d ed), p 597.
Therefore, we affirm the trial court’s judgment for the plaintiff.
The defendant also contends that the trial court erred in finding that plaintiff had a valid mechanic’s lien because the defendant is not the owner of the land. The validity of the lien was not controverted before trial and was not included as an issue for trial in the pretrial summary which controls the subsequent course of the litigation under GCR 1963, 301.3.
Although defendant sought to amend its answer during the course of the trial, the trial court did not grant the amendment and to have done so might have been an abuse of discretion.
Noting that under MCLA § 570.3 (Stat Ann 1953 Rev § 26.283) the mere fact that the defendant is not the owner of the land upon which the building sits would not be sufficient to invalidate the lien, we find the question to be moot because the defendant has deposited cash with the trial court in lieu of an appeal bond sufficient to satisfy judgment.
Affirmed. Costs to plaintiff.
All concurred. | [
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Bronson, J.
On April 16, 1967, Robert Lord’s car was struck by a vehicle owned and driven by Jesse Lee Hodges. Hodges alleged that his vehicle was struck by an unidentified hit-and-run vehicle and forced into Robert Lord.
Robert Lord brought suit against Jesse Lee Hodges and James Hare as director of the Motor Vehicle Accident Claims Fund. Plaintiff also filed a claim for arbitration against his own auto insurance company, Auto-Owners Insurance Company, under his uninsured motorists coverage. Defendant Auto-Owners Insurance Company declined to arbitrate the matter on the ground that it was not within the scope of the uninsured motorists coverage as contained in the policy. The reason, defendant claimed, was that the requirement of “physical contact” between the hit-and-run vehicle and the insured was a condition precedent to arbitration and coverage.
Plaintiff sought declaratory judgment in the Ma-comb County circuit court against Auto-Owners alleging that coverage did apply. The trial court held that the policy requirement of “physical contact” was met and that coverage did apply under tíre facts as alleged hy plaintiff. Defendant, Auto-Owners Insurance Company, appeals pursuant to GCR 1963, 806.1.
The insurance policy written between Auto-Owners Insurance Company and Robert Lord states, in part:
“D. ‘Uninsured automobile’ shall mean:
* * #
“(2) a hit-and-run automobile as defined;
* * *
“E. ‘Hit-and-run automobile’
shall mean an automobile which causes bodily injury to an assured arising out of physical contact of such automobile with the assured or with an automobile which the assured is in, upon, entering or alighting from at the time of the accident * * * .”
When asked to construe the provisions of an insurance contract written by the insurer, this Court will read the policy in such a manner as favors coverage for the insured. Squires v. Hayes (1968), 13 Mich App 449; Farm Bureau Insurance Company of Michigan v. Pedlow (1966), 3 Mich App 478; Hoehner v. Western Casualty & Surety Company (1967), 8 Mich App 708; Michigan Mutual Liability Company v. Karsten (1968), 13 Mich App 46.
The California Court of Appeals in the case of Inter-Insurance Exchange of the Automobile Club of Southern California v. Lopez (1965), 238 Cal App 441 (47 Cal Rptr 834), found that the requirement of “physical contact” embodied in an insurance contract serves a legitimate purpose. That purpose is to reduce the possibility that a motorist who loses control of a vehicle through his own negligence will be able to recover under an uninsured motorists coverage by alleging that an unknown vehicle caused the injuries complained of. In Inter-Insurance Exchange of the Automobile Club of Southern California v. Lopez, supra, plaintiff was injured when a car was hurled into his automobile by an impact with an unidentified hit-and-run car. The language of the hit-and-run clause provided that coverage was limited to “bodily injury to an insured arising out of physical contact of such [hit-and-run] automobile with the insured.” The Court held the contact requirement was satisfied, stating:
“We believe the physical contact requirement, designed to prevent false claims, should not be extended to defeat recovery in cases where fraud clearly does not exist.”
It is clear that ever since the time of Sir Isaac Newton man has recognized and lived by certain physical laws of impact and motion. Accordingly, we hold, as did the Federal Court of Appeals for the Fifth Circuit (applying Florida law) in the case of State Farm Mutual Automobile Insurance Company v. Spinola (CA 5, 1967), 374 F2d 873, that an insured party is covered where the impact of the hit-and-run car was transmitted to his car through an intermediate car. We find, as did Sir Isaac, that this acceptance of a fundamental property of natural phenomena is the more sensible and consistent view as regards transfer of impact through intermediate objects.
Affirmed.
All concurred. | [
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Per Ctjriam.
Defendant appeals his conviction by jury of carrying a dangerous weapon with unlawful intent. MCLA 750.226; MSA 28.423.
Defendant, through appointed appellate counsel, poses the issue for our determination as follows: Did the trial court abuse its discretion by not allowing the attorney for defendant adequate time to offer a defense of insanity, where it clearly was the only appropriate defense available?
The record reveals that the trial court ordered the defendant committed to the custody of the Center for Forensic Psychiatry pursuant to MCLA 767.27a(3); MSA 28.966(H)(3), for examination in order to determine his competency to stand trial. Thereafter it was determined, in accordance with the above examination, that the defendant was competent to stand trial.
Subsequently, at the commencement of trial, defense counsel filed a motion for leave to present the defense of insanity. The required four-day notice for such defense, MCLA 768.20, 768.21; MSA 28-.1043, 28.1044, was not given. Following a conference between defendant and his attorney, a statement was made on the record to the effect that he was withdrawing his motion for leave to present the defense of insanity. The record reveals that defendant insisted that his counsel withdraw his claim of insanity at this point in the proceedings. Counsel’s withdrawal of such motion at the request of the defendant had the effect of leaving the record as it stood prior to the filing of the motion. 56 Am Jur 2d, Motions, Rules and Orders, § 22, p 18. The trial court, therefore, had no occasion to exercise its discretion to rule on the admissibility of evidence of insanity. MCLA 768.21; MSA 28.1044. The question as to abuse of discretion is, therefore, not before this Court for review.
Affirmed. | [
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Per Curiam.
The defendant was granted leave to appeal an order of the circuit court affirming her district court conviction of selling alcoholic beverages to a minor in violation of a municipal ordinance.
The defendant on appeal claims that a mistrial should have been granted because of a police officer’s statement that “We were suspicious that minors were being sold intoxicating beverages out of Dewitt’s Food Market”. Defendant claims the testimony was hearsay which should not have been admitted over her objections. This statement was not hearsay nor was it prejudicial to the defendant, a clerk in the food market.
The defendant also objects to prejudicial statements made by the village attorney in his closing arguments. The statements were harmless. The crime here is of the malum prohibitum variety "and the admission by the defendant of the sale to the minor is sufficient to support conviction.
Finally, the solicitation and use by the police of a minor to purchase liquor from the defendant will not give rise to the defense of entrapment. The police created an opportunity for the defendant to commit the crime, but did not so induce her to commit the crime. People v Ovalle, 10 Mich App 540 (1968).
Affirmed. | [
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Per Curiam.
Defendant Michael Lee Dodson was convicted by a jury of assault with intent to commit rape, MCLA 750.85; MSA 28.280. He appeals as of right.
Defendant argues that his conviction should be reversed because of the admission into evidence at trial of ten alleged hearsay statements. Of these only one was preserved for appeal by objection below. Notwithstanding, we have considered defendant’s contentions, and conclude that they do not require reversal on the totality of the record in this case. We fail to find any prejudice to defendant resulting from admission of the statements challenged on appeal. See People v Grimmett, 29 Mich App 609, 612 (1971).
Affirmed. | [
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Memorandum Opinion.
Defendant pleaded guilty, on June 22, 1971, and on July 20, 1971, to two separate attempted larcenies in a building, and he appeals. Motions to affirm have been filed by the people.
Upon an examination of the briefs and records it is manifest that the questions sought to be reviewed are so unsubstantial as to need no argument or formal submission.
Motions to affirm are granted. | [
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Memorandum Opinion.
The defendant was convicted by a jury of uttering and publishing a forged instrument, MCLA 750.249; MSA 28.446, and he appeals.
An examination of the record and briefs discloses no prejudicial error.
Affirmed. | [
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O’Hara, J.
Defendant appeals of right from his plea of guilty to the offense of felonious assault, MCLA 750.82; MSA 28.277.
The first issue raised concerns the factual basis of the plea. When the trial judge examined the defendant at the time of taking the plea, he elicited from the defendant his sorry tale of a family quarrel which led to the calling of the police to whom the defendant exhibited a shotgun “so they’d see the shotgun and wouldn’t come in the house”. The principle of law here involved is similar to that in People v Counts, 318 Mich 45, 54 (1947). The Supreme Court held:
“Defendant’s claim that the specific intent necessary to constitute the offense of which he was convicted could not have been found by the jury because no threats were shown to have been made by him to Officer Faust is without merit. A threat may be made by conduct as well as by words, and certainly pointing a loaded g'un at one, under the circumstances indicated by the testimony of the people’s witness, may well be regarded as a threat, and as indicating an intent to injure.”
The examination of the defendant in this case, before acceptance of his guilty plea, furnished the necessary factual basis for the receipt thereof.
Defendant’s second issue involves the important statute concerning mental competency to stand trial, MCLA 767.27a; MSA 28.966(11).
After his arraignment, the defendant petitioned the court for a preliminary psychiatric examination to determine his competency to stand trial. On February 24, 1969, the court ordered the defendant to undergo diagnostic commitment at the Center for Forensic Psychiatry of the Department of Mental Health. The Center rendered its report to the court on April 3, 1969. The conclusion thereof was that the defendant was competent to stand trial. No trial was then held. Neither was there a hearing conducted by the court to determine the issue of competency. Instead, on May 22, 1969, the probate court acquired jurisdiction over the defendant to determine the propriety of his commitment to a state mental hospital. From the probate court the defendant went to Pontiac State Hospital where he remained until July 28, 1969. On this date he was released on convalescent status. Defendant’s petition that he be declared mentally ill, previously filed in the probate court, was dismissed on September 11, 1969. Thereafter defendant was returned to the circuit court where, on October 20, 1969, more than six months after his return from the original diagnostic commitment, he entered a plea of guilty.
Defendant now claims that it was error for the trial court to accept his plea without first conducting a hearing as to his competency. Section 4 of MCLA 767.27a; MSA 28.966(11) reads:
“Upon receipt of the diagnostic report and recommendations, the sheriff shall immediately return the defendant to the committing court and the court Shall immediately hear and determine the issue of competence to stand trial. The diagnostic report and recommendations shall be admissible as evidence in the hearing, but not for any other purpose in the pending criminal proceedings.”
The genesis of our present competency to stand trial statute was recently considered by this Court in People v Sherman Williams, 38 Mich App 370 (1972). This case is to be distinguished from Williams where we considered the question of the degree of showing of incompetency necessary before commitment to a diagnostic center is required.
Here we deal with, the failure of the court to hold a competency hearing upon the return of the accused from the diagnostic facility.
We must, of necessity, hold that the learned trial judge was in error when he declined to hold the competency hearing mandated by the statute on the theory that “the conducting of a formal competency hearing would have added nothing unless it was contested by the defendant”.
The irreducible fact is that once commitment to the center pursuant to statute is ordered, the ultimate determination of the question of one’s competence to stand trial, or to enter a plea, cannot rest merely on the conclusion reached there. The weight to he accorded to findings made, and the legal effect of such findings, must he the subject of a judicial determination and order. Absent such a requirement, a serious constitutional issue would arise. The proceedings were fatally infirm. We add, perhaps unnecessarily, that if neither the State nor the defendant chooses to introduce other testimony, the trial judge may make the judicial determination and base his order solely upon the report of the center.
Of necessity in this case, we reverse and remand for a new trial.
All concurred. | [
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Memorandum Opinion.
Defendant pleaded guilty to murder in the second degree 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 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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Levin, P. J.
The plaintiff, a manufacturer’s representative, commenced this action for commissions after the defendant manufacturer terminated the contract between them.
The defendant, Kaydon Engineering (Corporation, is a manufacturer of ball bearings. The plaintiff, Paul F. Reed, doing business as Reed Bearing and Equipment Company, was its sales representative in part of the State of Michigan.
Reed commenced this action claiming that he is entitled to $25,000 in commissions on $300,985.96 of orders placed with Kaydon from Reed’s territory before October 31, 1966, the effective date of termination. Kaydon contends that no unpaid commissions are owing because the $300,985.96 of orders were shipped after the effective date of termination, and the contract provides that commissions are payable only on orders shipped before termination.
The contractual relationship of the parties is stated in a printed form of contract prepared by Kaydon entitled Sales Representation Agreement.
It provides in part:
(a) Kaydon appoints Reed as its exclusive representative for the sale of its products in the designated territory (para 1);
(b) Kaydon agrees to pay Reed the scheduled commission on all orders “which are shipped into said territory and on all orders for such products shipped outside said territory which were obtained solely through the efforts of representative acting in said territory, unless such orders were obtained solely through the efforts of any other representative of Kaydon”. (para 4);
(c) Commissions will be computed “on all orders shipped after the effective date of this agreement and prior to termination of this agreement as hereinafter provided, without regard to the date of solicitation, acceptance, or invoice”, (para 7);
(d) The contract may be terminated by either party forthwith for cause and “without cause by 30 days’ written notice delivered to the opposite party”, (para 17).
The effective date of the contract was January 1, 1964. It was terminated by Kaydon as of October 31, 1966, by notice of termination sent to Reed September 29,1966.
Kaydon obtained a summary judgment. Reed appeals.
We reject Reed’s contention that there is an ambiguity in the language of the contract which should be resolved in his favor. It is altogether clear, reading the separate paragraphs of the contract as a whole, that commissions are required to be paid only on orders shipped before the effective date of any termination of the contract and that either party has the right to terminate without assigning cause on 30 days’ notice.
There may, however, be merit in Reed’s alternative contention that the contractual language relieving Kaydon of the obligation to pay commissions on orders not shipped before Kaydon’s unilateral termination of the contract is unconscionable and should be denied enforcement.
We need not decide whether, as claimed by Reed, the Uniform Commercial Code provisions concern ing unconscionable contracts or clauses apply to this contract. The concept that substantively unreasonable contractual provisions will not be enforced is part of our jurisprudence independently of the Uniform Commercial Code. See Allen v Michigan Bell Telephone Co, 18 Mich App 632, 638 (1969).
Whether a contractual provision is substantively unreasonable or unconscionable depends on the circumstances — on the facts; as it has been said, on the “commercial setting, purpose and effect” of the provision. See Williams v Walher-Thomas Furniture Co, 121 US App DC 315, 319; 350 F2d 445, 449 (1965).
Kaydon’s motion for summary judgment does not assert the absence of a genuine issue of material fact regarding Reed’s contention that language in the contract is unconscionable; absent such an assertion, duly supported by a proper affidavit, Reed had no obligation to show affirmatively that there is a genuine issue regarding that contention. See Hollerud v Malamis, 20 Mich App 748, 762 (1969).
The relevance of the factual background becomes apparent upon examination of the briefs filed by Kaydon in the trial court and in our Court which make various assertions regarding the facts in support of its contention that the contractual language is equitable and reasonable.
The reasonableness and conscionability of a particular contractual provision may, indeed, be a question for the court to decide. See Wilson Trading Corp v David Ferguson, Ltd, 23 NY2d 398, 403; 244 NE2d 685, 688 (1968). However, on a motion for summary judgment, “a trial judge may Hot anticipate his role as trier of the fact”. See American Parts Co, Inc v American Arbitration Association, 8 Mich App 156,170 (1967).
On the scanty record presented, neither the trial court nor we could properly , make a determination regarding the substantive reasonableness and enforceability of the contractual language relied on by Kaydon.
Reversed and remanded for trial. Costs to plaintiff.
All concurred.
See MCLA 440.2302(2); MSA 19.2302(2). While the quoted words appear in the Uniform Commercial Code and, as above stated, we expressly avoid deciding whether the code applies in this case, we adopt the quoted language because we think it cogently expresses the pertinent inquiry. | [
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R. B. Burns, J.
Plaintiffs are eight teachers who were employed by defendants during the 1968-1969 school year. Early in June of 1969 the three plaintiffs who were on tenure received a contract memorandum for the 1969-1970 school year. The five remaining plaintiffs who were on probation signed contracts for the 1969-1970 school year. A millage proposal was defeated on June 9, 1969. Later in June the plaintiffs were notified by defendants that due to the millage failure a reduction in staff was necessary and plaintiffs were relieved from teaching duties for the 1969-1970 school year.
On July 1, 1969, David J. Bruinsma, Michael V. Glass, and Paul Fulkerson filed a class action on behalf of themselves and approximately 70 other teachers, some of whom were tenure teachers and some of whom were employed on a probationary basis. The plaintiffs sought an injunction enjoining the defendants from discharging the plaintiffs and also asked for damages. The trial court denied the injunction on the basis that the plaintiffs had an adequate remedy at law.
Subsequently the voters approved the millage increase and defendants notified all of the teachers who had been released to disregard the previous notice terminating their employment. Most of the teachers released accepted this offer and have been dropped as plaintiffs. The eight remaining plaintiffs are those who accepted employment with other school districts before receiving notice from the defendants after the passage of the second millage proposal.
The trial judge held that the contract memoranda in conjunction with the master contract constituted individual contracts with the tenure teachers; that Article IV, § 5 of the teachers’ tenure act allowed the defendants to make necessary reduction in personnel even though the teachers had permanent tenure and were under contract; that the plaintiffs who had tenure must exhaust their administrative remedies by appeal to the State Tenure Commission before they were entitled to judicial review; that the probationary teachers did not have the right to any administrative review and their claims were a question of fact as to whether the defendants had abused their discretion; and that the probationary teacher plaintiffs were entitled to a trial on the issue.
The plaintiffs stipulated that under the court’s interpretation of the tenure act, the defendants’ actions were reasonable. The parties also stipulated as to the damages incurred by the plaintiffs.
We agree with the trial court that the contract memoranda in conjunction with the master contract constituted a binding contract on all parties.
Plaintiffs in the present case were not seeking a review of the board’s actions but were seeking damages for breach of contract. The trial court had jurisdiction to determine damages for the breach of contract.
As a general rule, in the absence of statutory authority or provisions in the teacher contract, a school district is not justified in dismissing a teacher without compensation prior to expiration of the contract even though the teacher’s services are no longer required. 100 ALR2d 1141,1146.
In Michigan there is no express statutory authority for terminating a teaching contract because of lack of funds.
MCLA 38.105; MSA 15.2005 reads “any teacher on permanent tenure whose services are terminated because of a necessary reduction in personnel shall be appointed to the first vacancy in the school district for which he is certified and qualified”.
Michigan cases have upheld teachers’ contracts when schools have burned and when two districts have consolidated. Smith v School-District No 2 of Pleasant Plains, 69 Mich 589 (1888); Wilson v School District No 4, Township of Ellington, 233 Mich 581 (1926).
Does the teachers’ tenure act abrogate this case law?
Defendants contend, and the trial court held, that the MCLA section quoted above is, by implication, authority for the defendants to terminate the service of a teacher because of necessary reduction of personnel.
In Rehberg v Ecorse School District No 11, 330 Mich 541, 547 (1951), the Court stated: “The Tenure Act was enacted for the purpose of protecting teachers from being discharged or demoted from a continuing tenure except for ‘reasonable and just cause’ ”. The Act was passed for the protection of teachers, not to take away rights.
Our interpretation of Art IV, § 5 of the act is that when it is necessary for a school district to reduce personnel they are excused from offering a tenure teacher a contract of employment. It does not excuse a school district from honoring a valid contract.
Any other interpretation would leave a probationary teacher, who is not under tenuie, with more contractual safeguards than a permanent tenure teacher.
Reversed and remanded for entry of judgment for the stipulated damages.
No costs, a public question being involved.
All concurred.
All teachers are on probation for the first two years of employment, MCLA 38.81; MSA 15.1981, | [
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Memorandum Opinion.
Defendant was convicted by a jury of the offense of armed robbery, MCLA 750.529; MSA 28.797, and was sentenced to a term of 30 to 40 years. The people move to affirm.
An examination of the record and briefs discloses no prejudicial error.
Affirmed. | [
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Holbrook, P. J.
This is a zoning case before this Court for the second time. In S B S Builders, Inc v Madison Heights, 21 Mich App 587 (1970), our Court reversed the judgment of the trial court which held that a zoning ordinance of defendant city, § 10-.503 (2) was unconstitutional on its face and remanded the case to the trial court with the direction:
“On remand the plaintiffs must establish that the ordinance has no reasonable relationship to the health, safety, or general welfare of the city’s residents, or mandamus may not issue. See Rottman v Township of Waterford, 13 Mich App 271 (1968).”
The facts therein stated are incorporated herein and we add all necessary additional facts.
After a two-day hearing before the trial court, a judgment was entered which ruled the ordinance was invalid as applied to plaintiffs’ property and a writ of mandamus was issued directing defendants to issue three building permits for three houses to be erected on plaintiffs’ 40-foot lots.
There are two issues raised on this appeal which we deal with in order.
I.
Is § 10.503 of the zoning ordinance of the City of Madison Heights unconstitutional on its face?
Plaintiffs’ position simply stated is that the ordinance which permits one individual to build on a 40-foot lot (singly owned) while denying the same right to another individual solely because he owns two or more contiguous lots is discriminatory and a clear denial of the equal protection of the laws guaranteed by both the Michigan and United States Constitutions.
The defendants assert that § 10.503(2), the exception permitting single ownership lots to be used for the building of a home, is a properly recognized zoning device to prevent confiscation of such property. Robyns v City of Dearborn, 341 Mich 495 (1954); Ritenour v Township of Dearborn, 326 Mich 242 (1949).
This issue was presented to the trial court but not determined because of its decision on issue II herein.
The fact that the defendant’s city council recognized the law applicable to single-owned 40-foot lots and exempted them from the operation of the ordinance is hardly sufficient reason to declare the entire zoning ordinance invalid. Further, the fact that the land was platted in 1923 in 40-foot-wide lots and that a major share of the subject subdivision has been built up with homes built on these 40-foot lots does not, per se, excuse the plaintiffs from complying with the ordinance. Korby v Township of Bedford, 348 Mich 193 (1957); Hungerford v Township of Dearborn, 362 Mich 126 (1960); Padover v Township of Farmington, 374 Mich 622 (1965); and Bierce v Gross, 47 NJ Super 148; 135 A2d 561 (1957).
In 2 Anderson, American Law of Zoning, § 8.49, pp 53-54, 56-57 it is stated:
“Before the subdivision of land was subjected to municipal control, a great deal of municipal land had been divided into small lots, many with less than 30 feet of frontage and less than 3,000 square feet of space. When greater frontage and area requirements were superimposed upon this pattern, many owners were left with substandard lots. Strict and literal enforcement of the more stringent regulations would have made such lots useless to their owners and to the community. In addition, the regulations which destroyed the use value of such substandard lots would have been held confiscatory.
“To avoid this result, most ordinances provide some relief for the owner of a substandard lot. * * *
“The common exception of lots which were recorded prior to the effective date of a restrictive ordinance is limited to lots which were in single and separate ownership on that date. Under such a provision, an owner is entitled to an exception only if his lot is isolated. If the owner of such a lot owns another lot adjacent to it, he is not entitled to an exception. Rather, he must combine the two lots to form one which will meet, or more closely approximate, the frontage and area requirements of the ordinance. Where, for example, a landowner held four contiguous lots which each had a frontage of 20 feet, he was regarded as owning 80 feet of frontage and was required to redivide the land consistent with the zoning regulations. This requirement was held reasonable as it permitted him some reasonable use of his land. The same result was reached where the owner of a lot containing 5,000 square feet acquired a contiguous lot of the same size. Under the ordinance he was considered to own a lot of 10,000 square feet.”
In determining whether an ordinance is unconstitutional because violative of the equal protection clauses of the State and Federal Constitutions, we refer to the case of Fox v Employment Security Commission, 379 Mich 579, 588-589 (1967), wherein Mr. Justice T. M. Kavanagh states:
“This Court has held numerous times that the Michigan Const 1908, art 2, § 1, secures the same right of equal protection as does its counterpart in the Constitution of the United States. Gauthier v Campbell, Wyant & Cannon Foundry Company, 360 Mich 510, 514 (1960), and cases therein cited. The same provisions in Const 1963, art 1, §§ 1 and 2, must likewise be held to afford the same rights as the Federal equal protection clause.
“There is no doubt that State legislatures have a broad range of discretion in establishing classifications in the exercise of their powers of regulation. However, the constitutional guarantees of equal protection are interposed against discriminations that are entirely arbitrary. In determining what is within legislative discretion and what is arbitrary, regard must be had for the particular subject of the State legislation. There must be a relation between the classification and the purposes of the act in which it is found. Smith v Cahoon, Sheriff, 283 US 553, 566; 51 S Ct 582, 587; 75 L Ed 1264, 1274 (1931); Morey v Boud, 354 US 457, 465; 77 S Ct 1344,1350; 1 L Ed 2d 1485,1491 (1957); Beauty Built Construction Corporation v City of Warren, 375 Mich 229 (1965); Palmer Park Theatre Company v City of Highland Park, 362 Mich 326 (1961).
“In the case of People v Chapman, 301 Mich 584 (1942), a statute of this State was challenged as unconstitutionally denying the defendant therein equal protection of the laws. Justice Starr, writing for the Court, stated (pp 597-598):
“ ‘It is well recognized that the legislature may make classifications of persons, provided such classifications are based on substantial distinctions and are in accord with the aims sought to be achieved. (Citing cases.) However, such classification must be neither arbitrary nor capricious, but must rest on reasonable and justifiable foundations. In Haynes v Lapeer Circuit Judge, supra, [201 Mich 138 (1918)] p 141, the rule is stated:
“ ‘ “Legislation which, in carrying out a public purpose for the common good, is limited by reasonable and justifiable differentiation to a distinct type of 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.” ’
“See, also, Davidow v Wadsworth Manfg. Co, 211 Mich 90, 97-102 (1920); Peninsular Stove Co v Burton, 220 Mich 284, 286 (1922); Smith v Wayne Pro-hate Judge, 231 Mich 409 (1925).”
The relevant enabling statutes granting defendant city the power to enact a zoning ordinance are MCLA 125.581 et seq; MSA 5.2931 et seq. The subject zoning ordinance of defendant city is in conformance with the stated enabling statute.
To resolve the issue presented, we must determine whether there is a proper relationship between the classification (those owning contiguous 40-foot lots) and the purposes of ordinance § 10.503. The title, intent, and preamble to this ordinance read:
“Title
“An ordinance to regulate and restrict the location and use of buildings, structures and land for trade, industry, residence and for public and semipublic or other specified uses; and to regulate and limit the height; and bulk of buildings and other structures; to regulate and to determine the sise of yards, courts, and open spaces; to regulate and limit the density of population; and for said purposes to divide the city into districts and establishing the boundaries thereof; providing for changes in the regulations; restrictions and boundaries of such districts ; defining certain terms used herein; providing for enforcement; establishing a Board of Appeals ; and imposing penalties for the violation of this ordinance.
“Intent
“All land sones are hereby declared to be exclusive and restricted to the designated areas.
“Preamble
“Pursuant to the authority conferred by Public Act No. 207 of the Public Acts of 1921 of the State of Michigan, and acts amendatory thereto, in such case, made and provided and for the purpose of promoting and protecting the public health, safety, peace, morals, comfort, convenience, and general welfare of the inhabitants of the City of Madison Heights by protecting and conserving the character and social and economic stability of the residential, commercial, industrial and other use areas; by se curing the most appropriate use of land; preventing overcrowding of land and undue congestion of population; providing adequate light, air, and reasonable access; and facilitating adequate and economical provision of transportation, water, sewer, schools, recreation, and other public requirements, and by other means, all in accordance with a comprehensive plan; now therefore(Emphasis supplied.)
We deem the purposes of the ordinance to be those contained in the above language appearing in italics.
We further point out that area width and depth requirements have a significant role in zoning and their purpose is to prevent overcrowding and undue concentration of population and to preserve the essential residential character of a community.
These purposes are clear and would permit districting of the property in question to the B.-2 classification (single residences on 60-foot-wide lots). We rule that the ordinance on its face serves a public purpose for a common good for the residents of the defendant city and that the classification of persons in question includes all who are able to comply with the ordinance, i.e., have sufficient land to place a single residence on a lot which is at least 60-foot wide. The classification includes and affects alike all persons of the same class. The other class is exempt by law from the operation of the ordinance (those who only own one single 40-foot lot) because to enforce it against this class would amount to confiscation of their property.
Plaintiffs cite the ease of Lengel v Pirnie, 128 NYS2d 490 (1954), as supporting the position that failure to exempt adjacent lots in common ownership is an abuse of the state’s police power. In Lengel, the facts are not analogous in that the width of the two lots involved had been approved by the local planning board before filing. Further, we decline to follow the rule the case purports to make.
II.
Is the Madison Heights zoning ordinance, particu-larly § 10.300 et seq, unconstitutional as applied to the plaintiffs’ lots because the ordinance bears no reasonable relationship to the general health, safety, or welfare of the community?
The learned trial judge after trial made the following determination:
“I am persuaded, by the weight of the testimony, that the ordinance here involved has absolutely no reasonable relationship to the health, safety or general welfare of the people involved or the City of Madison Heights.
“In fact, to the contrary, by a fair preponderance of the evidence, it has been exclusively proven to my satisfaction that residential homes can be easily erected on the forty-foot lots involved and that human beings may inhabit these homes and live there safely without detriment to the public health, safety, and general welfare of the community, without causing congestion on the public streets or without detriment to the property values or injury to the general trend and character of building and population development.
“There are adequate public utilities fully available.”
It is true as defendants assert that an appellate court hears zoning appeals, de novo. Padover v Township of Farmington, supra.
We now look at the record to determine what evidence was before the trial court when it made its determination.
Plaintiffs are the owners by purchase in 1958 of contiguous lots 151, 152, and 153 in Symphony Park subdivision platted in 1923 as 40-foot-wide lots. Defendant city was incorporated into a “home rule” city in 1955 and included the subject property. At the time of incorporation the city had a population of approximately 10,000. In 1970 the city had grown considerably to approximately 38,600 residents. In 1964 the defendant city adopted a master plan for the proper development of the city after a three-year study and resulting report from a recognized planning firm. The original zoning ordinance was duly adopted in 1965 and zoned plaintiffs’ property as B-3 which required single residential lots of at least 50-foot widths. Subsequently, in 1967, the defendant city council in the subject ordinance zoned the property B-2 which required 60-foot-wide lots.
Mr. Seligman, president of both plaintiff corporations, testified that plaintiffs have built approximately 50 homes within a radius of 3 or 4 blocks of the subject property. These were built prior to 1968 and nearly all of them were built on 40-foot lots. He testified:
“From time to time, we have owned a lot of property in the immediate neighborhood. We buy scattered lots and build homes on that basis.”
During Mr. Seligman’s testimony the following appears in the transcript:
“The Court: Now, gentlemen, it is in the record, is it not, that a home can be built on any one of these three 40-foot lots and comply with all of the health, safety, welfare regulations of the Madison Heights building code? Is that right? I thought I heard that answer.
“Mr. Young: Well, may I rephrase it? We will concede that it is possible to build on a 40-foot lot and comply with the building code of the City of Madison Heights.
“Is that right, Mr. Payne?
“Mr. Payne: That’s right.
“The Court: Well, there is no public health, as such, or safety regulation in the ordinances of Madison Heights that would be offended in any way, is there, by building a house on that lot, that you know of, Mr. Young? You have been the city attorney there for so many years.
“Mr. Young: It is conceivable that there might have to he some side-yard variances or rear-yard variances. I don’t know, frankly.
“But let me just say this, your Honor: That I don’t believe that complying with a building code necessarily or per se indicates that the relationship of the existing zoning ordinance violates the health, safety or welfare of the community.”
Mrs. Dorothy Lentz, City Clerk of defendant city, testified in part :
“Q. Mrs. Lentz, how many years did you live in the city of Madison Heights?
“A. Twelve years.
“Q. What was the size of your lot ?
“A. Thirty-five-foot lot.
“Q. And who lived in your home with you?
“A. My mother, my two children.
“Q. Was there any aspect of your home that you felt was not compatible with health, safety, or general welfare?
“A. No, sir.
“Q. Were all of the homes on your street similarly situated on 35- or 40-foot lots?
“A. They were all 40-foot lots except mine.
“Q. Was your street well kept?
“A. Yes, sir.
“Q. Was your home neat?
“A. Yes, sir.
“Q. Was your house landscaped and properly cared for?
“A. Yes.
“Q. Did you suffer in any way from inadequate police protection?
“A. No, sir.
“Q. Were there any major fires that you were aware of on your street?
“A. No, sir.”
Mr. Todd Kilroy, Planning Director of the City of Madison Heights, testified in part as follows:
“Q. (By Mr. Qurwin, plaintiffs’ attorney): What does the master plan propose to show?
“A. The master plan with respect to the subject area?
“Q. Yes.
“A. Shows that area as residential.
“Q. Does it break it down into sub-classifications of residential?
“A. No, it does not.
“Q. To the extent that this area is zoned residential, is that consistent with the master plan?
“A. Yes, it is.
“Q. Does the master plan make any recommendations as to lot sizes?
“A. No, not that I recall.
“Q. Does it make any recommendations as to area of lot size as opposed to width of lot size?
“A. I don’t think it does. I don’t recall specifically, I don’t believe it does.
“Q. Do you know what the zoning classification was for the area in which lots 151, 152 and 153 is situated at the time of the adoption of the master plan?
“A. Let’s see — I’m not familiar with the designation, as an example, R.-2 or R-3. It was prior to the adoption of our current zoning ordinance, and I don’t recall — I believe it was 50-foot lots, but I am not positive. I would have to refer to our past ordinance.
“Q. Do you know when the existing zoning map was amended so as to change the zoning classification for this particular block on Alger Street?
“A. The specific amendment?
“Q. Yes.
“A. It was adopted approximately in November of 1967.
“Q. Do you have any records with you which would specify exactly when that ordinance was passed changing the zoning for lots 151,152 and 153, Symphony Park Subdivision?
“A. I have the plan commission recommendation. However, I believe our city clerk has that record with her.
“Q. Did your planning commission make any recommendation to the city counsel with respect to the rezoning of this one block on Alger Street?
“A. The plan commission’s recommendation covered a block and a half from Brush Street westerly, and both sides of Alger Street; Brush and Alger being parallel north-south streets. And their recommendation was for the retention of R-3 50-foot lot zoning.
“Q. Did the city counsel overrule that recommendation and effect a change of zoning anyway?
“A. Yes, according to the record, they did.
“Q. And what is the present requirement for lot size on this block on Alger Street?
“A. Sixty-foot widths for residential lots.
# # #
“Q. {By Mr. Gurwin): Do you know the basis for the planning commission’s recommendation that the property not be rezoned from the ordinance requirement of 50 feet frontage to 60 feet?
“A. I believe at the time the planning commission considered this, that they felt that the majority of the land in the general area was of the 50-foot width development, and that this would be appropriate for the remaining vacant area that was under consideration for rezoning.
“Q. I am going to hand you Exhibit 1 and ask you to make reference to the street immediately to the rear of Alger Street, or to the east, which is Brush Boulevard; is that correct?
“A. Right.
“Q. And beginning with lots 67 up to lot 81, which is a full block, do you have knowledge of whether or not that street has been developed?
“A. I believe it has been developed, yes.
“Q. And would it be fair to say that that entire block has been developed with 40-foot homes?
“A. No, it wouldn’t be fair to say that. The majority of the lots are 39 feet wide.
“Q. Thirty-nine feet wide.
“Would it be fair to say that each of those lots has been developed with one residence thereon?
“A. I would imagine so.
“Q. Okay.
“Are you familiar with lot 149, which is on the corner of Vermont and Alger Street, two lots down from the subject property?
“A. Yes.
“Q. Is there a single house on that particular lot of record?
“A. That lot has a single home on it, that’s correct.
|V,
|V, tF 9F
“Q. Do you feel, in your opinion, that this ordinance adequately protects the community in terms of health, safety, and general welfare in those areas ?
“A. I believe if the setbacks are maintained on those lots that are permitted to be developed under the terms of the ordinance, the general health and welfare may be protected.
“Q. If lot 151 were owned by an individual owner who did not own 152 or 153, under the terms of your ordinance, would that owner have been permitted to build a home on lot 151 ?
“A. According to our attorney’s interpretation, yes.
“Q. As city planner, do you know of any reason why that would be detrimental to the health, safety, and general welfare of the community?
“A. No, I can’t see any reason why it would be detrimental per se.
TP TP
“Q. (By Mr. Qurwm): Mr. Kilroy, I am going to hand you something which has not been marked as an exhibit because I give it to you to only help you refresh your recollection in testifying. This is a facsimile of plat maps of the surrounding area to this property pasted together to form an over-all picture.
“In looking at it, can you recognize the area that we are talking about here?
“A. Yes.
“Q. Are you oriented in north, east, south, and west?
“A. Yes.
“Q. Do you see Alger Street on this map?
“A. Yes.
“Q. How far north of Eleven Mile Road is Alger Street?
“A. It runs two blocks in a north-south direction.
“Q. And the subject property, lots 151, 2, and 3, is how far from Eleven Mile Road?
“A. It is approximately one block north of Eleven Mile.
. “Q. And how far is it from John R? Which would be on the east.
“A. Approximately a block and a half.
“Q. Now, in that block immediately south of the subject property, the block between John — between Eleven Mile Road and the intersection near where this property is located, what are the size of the residential lots in that first block?
“A. Do you mean on Alger Street?
“Q. On Alger Street.
“A. As shown on this drawing, the majority of lot sizes are 39 feet.
“Q. Are yon familiar with this Block?
“A. Yes, I guess so.
“Q. Would you tell the Court how it has been developed over the years ?
“A. In what manner?
“Q. What types of homes are on that property and what are the sizes of the building sites?
“A. Well, the types of homes that are there are single-family, mostly frame. Some with brick fronts.
“With respect to the size of the buildings, I have no knowledge.
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IP w *ir
“Q. (By Mr. Young, defendant’s attorney): Mr. Kilroy, I believe you indicated that a home could be built on a 40-foot lot and be safely lived in so that the individual, his health wouldn’t be impaired or his safety wouldn’t be impaired; is that right, sir?
“A. Yes.
“Q. Do you know when the City of Madison Heights was incorporated?
“A. In December of 1955.
“Q. Since that time, have you examined the records to determine what plats have been recorded within the City of Madison Heights ?
“A. Generally, over the years, I have, yes.
“Q. In any of these plats, have any lots been platted with a width, with a frontage, of less than 50 feet upon any street?
“A. Not that I recall. The only situation would be in pie-shaped lots where the building line setback would be in excess of the requirement.
“Q. Now, why is it if you know that there is a requirement that lots be a minimum width of 50 feet, what is the concept of that?
“A. Apparently the concept is that the general health cmd welfare would be better protected by a larger lot sise, larger setback areas, between homes and providing larger lots within the city to encourage larger home construction.
“Q. What about the congestion where there are smaller lots ?
“A. Well, there is no question that the smaller the lot, the more persons per acre, the higher the density and the higher congestion possible.
“Q. Does that in any way affect the health and safety of the individual residing in these houses?
“A. With the more congestion, of course, the more impaired their safety would be.
“Q. What about play room, living room, would you say that a 40-foot lot is conducive to sufficient play room or living room?
“Mr. Gurwin: Tour Honor, I think he is leading this witness with these questions.
“The Court: He is. I will sustain the objection.
“Mr. Young: Now, this is Mr. Gurwin’s witness, your Honor, and—
“The Court (Interposing): I forgot. You are right. You may have your answer.
“The Witness: You mean living area outside the building or — I don’t understand the question.
“Q. (By Mr. Young)-. Yes, living area outside the building.
“A. The larger lots, the larger the living area.
“Q. As a planner, do you find anything objectionable to a 40-foot lot, building upon a 40-foot lot?
“A. To qualify my answer, as a planner, I find it objectionable. .However, it is difficult for me to determine what is the best for the general health and welfare when the majority of the community, exclusive of the area under discussion right now, is developed in larger than 40-foot lots.
“Q. And is it possible to develop this particular area in larger than 40-foot lots?
“A. Yes, it is possible.
“Q. As a matter of fact, it is being developed in larger than 40-foot lots ?
“A. That’s correct.
.V. .y. TÍ TT
By Mr. Young:
“Q. Mr. Kilroy, I will show you. defendant’s proposed Exhibit #3 and ask you to identify this.
“A. This is a map showing the quarter section which contains the plaintiffs’ lots in the area zoned R-2 to 60-foot widths, and the R-3 which is the 50-foot widths.
“It indicates, in red, the plaintiffs’ property. And it shows, in dark blue squares, the location of houses either existing or under construction.
“Q. Was this prepared by you or under your direction?
“A. Under my direction, that’s correct.
“Mr. Gurwin: I have no objection to this exhibit for the purpose of showing the sizes of the lots throughout the general area surrounding this property. I do object to it for purposes of showing those presently existing or under construction, because it is confined to a three-block area and does not show the existing throughout the area generally and, in that respect, is misleading.
“The Court: Well, I will admit the exhibit.
# * #
“Q. (By Mr. Gurwin): Our property is on Alger Street. What is the first block north of our property?
“A. Do you mean up in here (indicating) ?
“Q. If you are on Alger Street and heading north, when you get to the end of the block, what do you get to ?
“A. The street dead ends.
“Q. The street dead ends ?
“A. Right.
“Q. It does not go through?
“A. It does not go through.
“Q. You reach the back of houses in an adjoining subdivision?
“A. Yes.
“Q. When was the plat for this subdivision on the north approved by the city?
“A. I don’t know; I have no knowledge of that.
“Q. Isn’t it true that as a matter of fact you can’t get from that subdivision on the north down into our street without going all the way around over on a different street?
“A. That’s correct.
“Q. So that if you are on our block and head north, before you get into the neighborhood that has been developed on 50-foot lots, and all brick homes in a moderate, middle-class neighborhood, you reach a dead end; is that right?
“A. That’s correct.
“Q. In effect, our block, the second block, is aligned geographically with the first block which is part of a contiguous neighborhood unit; isn’t that true?
“A. I will say that it is aligned with the first block.”
Mr. Martin D. Payne, chief building inspector for defendant city, testified in part as follows:
“Q. (By Mr. Gurwin): In the City of Madison Heights today, do you permit the issuance of building permits upon building sites which are 40 feet in width?
“A. Under certain conditions.
“Q. And what are those conditions?
“A. A single lot of record that was in single ownership at the time of the adoption of the ordinance on May 6, 1965, is entitled to a permit on that lot.
“In a block having 51% of the lots already built on 40-foot lots, additional lots has [sic] a right to a permit.
“Q. Do you have any recorded platted lots of less than 40 feet in Madison Heights ?
“A. That’s correct, there is.
“Q. Do they also fit within the exception to this ordinance?
“A. I would say so.
“Q. Within the last five years, has your department issued any building permits for residential homes upon building sites of 40 feet or less?
“A. Yes.
“Q. What has been the smallest lot that you have issued a building permit for that you can recall?
“A. I couldn’t answer that. I just don’t know.
“Q. Can you recall of any that have been specifically less than 40 feet?
“A. Not specifically, no.
“Q. Can you recall of some that have been 40 feet?
“A. I can think of various that may have been 40 feet, but not exactly.
“Q. Are you familiar with the building code?
“A. I think so.
“Q. Can homes be built on 40-foot sites within your city which comply in all respects with the building code?
“A. Yes.
“Q. In your opinion, can homes be built on 40-foot sites that comply in all respects with every requirement of health, safety and welfare which is incorporated in your building code ?
“A. Yes.” (Emphasis supplied.)
Mr. Elmer E. Mueller, a registered community planner and Assistant Director for the Detroit City Planning Commission, testified for the defendant city in part as follows:
“Q. Is there any environmental effect upon a community when homes are built on small lots?
“A. There is a detrimental effect.
“Q. A detrimental effect?
“A. Yes.
“Q. In your opinion, would you consider a 40-foot lot a small lot?
“A. Based on today’s standard, yes.
“Q. Can you tell us some of the problems which are encountered in the community when homes are built on small — on 40-foot lots f
“A. I would like to say there are many purposes and objectives in lot-size control which, of course, definitely relates to population density, which is one of our serious problems today; in relation to pollution, pollution in the form of air pollution; noise pollution; visual pollution; these are serious problems relating to today’s environmental situation. And, therefore, lot-size control.
“When, I think, they have small lots, they have adverse effect toward their goal of improving our environmental situation.
“In the early part of this century, a 30-foot lot was considered adequate because there were no problems that we are faced with today. Some of our social problems are related to congestion. And congestion, of course, is created by a lot-size situation. If you allow a lot of homes in a particular area to reach congestion, this conduces to some of the evils and problems relating to health and general welfare and social problems that are related to it.
“Therefore, some of the reasons I am giving are based on some of these particular factors which I think are extremely important in our present day society. Many of our social problems are related to congestion.
*^i. 4u TP *7?
TP *7?
“[The witness]: What I am saying, the three lots themselves are not the total, what takes place there in themselves isn’t going to solve all of these things. I am saying the standard is based on accomplishing these goals and objectives. And if the standard is destroyed or eliminated or ruled out, then throughout the entire community, all of the lots which are of lower size than the present-day standard can be broke [sic] down and then you are confronted with the problems of that congestion.
“So, what the community is trying to do in this instance is upgrade their standards to what is considered a decent, normal, desirable situation. Not only in relation to the community as a whole, but to the individual family. And the individual family, I believe — and my profession believes — is entitled to certain environmental conditions, and lot size is related to that. A decent place and adequate size to rear children, safety in relation to minimizing fire hazards, minimizing health hazards, traffic congestion, these are all related to lot size; because lot size is the basic determining situation as to what creates density.
“Q. (By Mr. Young): In your opinion, are the lot-size controls as provided for in the City of Madison Heights necessary to realize the objectives and goals that you have outlined?
“A. I definitely believe so, yes.
“Q. Do you believe that Madison Heights lot-size requirements are unreasonable or prohibitive?
“A. No, I do not.
“Q. Do you believe they are necessary to provide the environmental condition that will be conducive to health, safety and welfare of the residents of the city?
“A. Yes.”
At the time of the commencement of this litigation, no homes had been built in the block on Alger Street where plaintiffs’ lots were located. But at the time of trial five homes had been built or were in the process of being built on 60-foot-wide lots.
The question before this Court is not whether houses can be built on the 40-foot-wide lots of the plaintiffs and meet all the requirements for public health, safety, and welfare as prescribed in the building code of the defendant city, but rather have the plaintiffs sustained their burden of proving that the zoning ordinance adopted in 1967 changing the classification from R-3 (50-foot-wide lots) to R-2 (60-foot-wide lots) is unreasonable as having no real and substantial relation to public health, safety, morals, and welfare of the community?
A zoning ordinance is presumed reasonable and constitutional and objectors must assume the burden of proving it unreasonable. Hammond v Bloomfield Hills Building Inspector, 331 Mich 551 (1951); Bassey v City of Huntington Woods, 344 Mich 701 (1956); Patchak v Township of Lansing, 361 Mich 489 (1960).
In ruling on the instant issue, we must judge this case on the particular facts and circumstances present. Korby v Township of Bedford, supra; Christine Building Company v City of Troy, 367 Mich 508 (1962); Brandau v City of Grosse Pointe Park, 5 Mich App 297 (1966).
In this case we are unable to predicate a finding of reasonableness of the zoning ordinance on the master plan of the city alone, for it recommended only that the subject property should be for single residences. There were no recommended lot widths contained therein. Biske v City of Troy, 381 Mich 611 (1969).
Our Supreme Court has on many occasions set forth our duty in regard to reviewing equity cases de novo, and reiterated the rule in the case of Biske v City of Troy, supra, at pp 613-614:
“To quote Justice T. M. Kavanagh, writer of the Court’s opinion in the Christine Case (pp 517-518):
“ ‘We hear and consider chancery cases de novo on the record on appeal. Johnson v Johnson, 363 Mich 354 (1961); Osten-Sacken v Steiner, 356 Mich 468 (1959); Futernick v Cutler, 356 Mich 33 (1959); A & C Engineering Co v Atherholt, 355 Mich 677 (1959); Straith v Straith, 355 Mich 267 (1959); Ball v Sweeney, 354 Mich 616. This Court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases. This is primarily because the trial judge is in a better position to test the credibility of the witnesses by observing them in court and hearing them testify than is an appellate court which has no such opportunity. We do not ordinarily disturb the findings of the trial judge in an equity case unless, after an examination of the entire record, we reach the conclusion we would have arrived at a different result had we been in the position of the trial judge.’ ”
The “Subdivision Control Act of 1967” provides in pertinent part (MCLA 560.186; MSA 26.430 [186]):
“As a condition of approval of the final plat, the following shall apply to all lots and outlots subdivided as defined in section 102:
# # *
“(b) No residential lot shall be less than 65 feet wide at the distance of 25 feet from its front line. If a lot diminishes in width from front to rear, it shall be no less than 65 feet wide at a distance of 50 feet from its front line.
# # #
“(d) Minimum width and area requirements for residential lots as set forth in this act may be waived in any subdivision where connection to a public water and a public sewer system is available and accessible or where the proprietor before approval of the plat has posted security with the clerk of the municipality as provided in section 182, and where the municipality in which the subdivision is proposed has legally adopted zoning and subdivision control ordinances which include minimum lot width and lot area provisions for residential buildings.”
The purpose of the “Subdivision Control Act of 1967” is stated to be “An act to regulate the subdivision of land; to promote the public health, safety and general welfare; to further the orderly layout and use of land.”
Under the stated purpose of the “Subdivision Control Act of 1967” and its provisions, the Legislature has stated, in effect, that requiring lot widths of 65 feet for single residences promotes the public health, safety, and general welfare.
Even though at first blush it might be said that the learned trial judge properly ruled on the issue considered, upon further reflection after reviewing all of the evidence and particularly the testimony of Mr. Kilroy, planning director of defendant city and Mr. Mueller, Assistant Director for the Detroit City Planning Commission, coupled with the important lot width standards set forth in the “Subdivision Control Act of 1967” for single residences, we are compelled to reach the conclusion that had we sat as trial chancellor, we would have been required to arrive at the conclusion that the plaintiffs failed in their burden of proving the zoning ordinance of 1967 of defendant city unreasonable as having no real and substantial relation to public health, safety, morals, or welfare of the community.
We have now ruled that the plaintiffs have failed to show the ordinance unconstitutional, as asserted by plaintiffs in the two issues considered. We, therefore, set aside the writ of mandamus issued by the trial court.
Reversed. Costs to defendants.
All concurred.
The subject ordinance requires lots to be at least 60 feet wide and houses built thereon to be used for single dwelling purposes, subject to the following provisions:
“Nonconforming Lots: In any district in which single family dwellings are permitted, notwithstanding limitations imposed by other provisions of this ordinance, a single family dwelling and customary accessory buildings may be erected on any single lot or record at the effective date of adoption or amendment of this ordinance, provided such lot is located in a block on which fifty-one (51%) per cent or more of the lots on both sides of the street are occupied by single family dwellings. Where fifty-one (51%) per cent or more of the existing homes are built upon a larger lot or combination of lots, a building permit will not be granted for a lot of less area or width than the size of the lots of the majority of the dwellings existing at the time of passage of this ordinance. In those areas where less than fifty-one (51%) per cent of the lots are built upon in a one (1) block area, the provisions regarding the use of combined lots shall apply. Permission to use a single nonconforming lot as herein provided shall apply even though such lot fails to meet the requirements for area or width; or both, that are generally applicable in the district, provided that yard dimensions and other requirements not involving area or width or both, or the lot shall conform to the regulations for the district in which lot is located.
“If two (2) or more lots or combinations of lots and portions of lots with continuous frontage in single ownership are on record at the time of passage or amendment of this ordinance, and if all or part of the lots do not meet the requirements for lot width and area as established by this ordinance, the lands involved shall be considered to be an undivided parcel for the purposes of this ordinance, and no portion of said parcel shall be used or occupied which does not meet lot width and area requirements established by this ordinance, nor shall any division of the parcel be made which leaves remaining any lot with width or area below the requirements stated in this ordinance.”
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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 a term of 12 to 15 years in prison and he appeals.
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.
Affirmed. | [
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V. J. Brennan, J.
Defendant pled guilty to the charge of breaking and entering a building with intent to commit larceny (MCLA 750.110; MSA 28.305). He appeals as of right after the trial court’s denial of his motion for a new trial.
Defendant’s position on appeal is, to this Court, a familiar one. He points out that the trial court did not advise him of his privilege against self-incrimination and his right to confront his accusers. Relying primarily on Boykin v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969), defendant argues that these omissions warrant the grant of a new trial.
Similar arguments have previously been rejected by the majority of the members of this Court. If the trial court determines that defendant’s plea of guilty was voluntarily and intelligently made, then the requirements of Boykin, supra, are satisfied. People v Jaworski, 25 Mich App 540 (1970)'; People v Brewer, 31 Mich App 177 (1971).
In the instant case the court informed the defendant of the elements of the offense with which he was charged, advised him of his right to trial by jury and his right to counsel, established that Ms plea was voluntarily made, and elicited a sufficient factual basis to support the truthfulness of the plea. We find no error.
Affirmed.
All concurred. | [
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Memorandum Opinion.
Defendant asserts that reversible error occurred at trial when his confession was admitted in evidence. Defendant claims the confession was involuntary.
After a separate hearing to determine the voluntariness of the confession, the trial judge found it to be voluntary. Our review of the record of that hearing fails to convince us that this finding is clearly erroneous, People v Walker, 6 Mich App 600 (1967).
Affirmed. | [
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V. J. Brennan, J.
Defendant was convicted by a jury of breaking and entering with intent to commit larceny (MCLA 750.110; MSA 28.305). The crime was alleged to have occurred at the premises of the Michigan Steel Products Company in Bay City. Certain evidence was found near the scene of the breaking which tended to link the defendant to the crime. The evidence consisted of' a pair of prescription sunglasses which the defendant admitted to be his, but which defendant claimed he lost while he was an employee of Michigan Steel Products. Also found was a partially depleted package of Camel cigarettes (defendant’s brand) and a piece of paper on which was written the name “Jerry” and a telephone number, which paper was tucked inside the cellophane of the cigarette package. The crime was alleged to have occurred either on the evening of Saturday, February 21, 1970, or the early morning of Sunday, February 22,1970.
. At defendant’s trial, one Gerald Kosecki testified that the number on the piece of paper was his telephone number and that the defendant was at his home on the evening of Saturday, February 21,1970. Mr. Kosecki could not recall, however, whether he had given the defendant his telephone number at that time. Upon the failure of Mr. Kosecki’s memory, the prosecutor showed him a statement which Mr. Kosecki had given to the state police on June 11, 1970, and which was written in Mr. Kosecki’s hand. The witness testified that the statement did not refresh his recollection. The statement was then introduced into evidence over the objections of the defendant with the court ruling that it was admissible for impeachment purposes. The full text of the statement admitted is as follows:
“Dick [ ] and Pete came over to my place Saturday, February 21st and I and the wife had company. I was drinking a few beers before they came over. Dick went out and got a few more — 6 or 12. He was only gone a few moments and my wife smelled some-think like wiring burning. Dick looked at it but I told him he could come back maybe the next day and look at it, so I believe I wrote down my phone number to call me before he did come over. I never seen him the next day. He was over but I wasn’t home.”
The defendant on appeal argues that the introduction of this statement into evidence constitutes reversible error, and we agree.
In this case, there was an insufficient contradiction between the witness’s testimony and his prior statement to warrant the introduction of that statement for impeachment purposes. On the stand the witness testified that he had no recollection whatsoever regarding whether or • when he gave the defendant his telephone number on a piece of paper. The witness’s prior statement to the police officer was not a definite statement to the contrary but rather was qualified. Most of the text of the witness’s statement to the police was given in definite, positive terms; however, the sentence dealing with giving the defendant his telephone number was decidedly qualified. This is not a sufficient contradiction from which the jury could infer anything regarding the truthfulness of the witness.
While there is some precedent that prior statements of witnesses may be admitted in criminal cases under the theory of past recollection recorded, the statement here introduced does not even meet the qualifications for admission into evidence under that theory. In order for a statement to be admitted under that theory there must be some showing that the statement was accurate when given. It is generally desirable that the statement be made contemporaneous with the events described therein, or at least shortly thereafter. Koehler v Abey, 168 Mich 113 (1911). The statement here introduced was made almost four months after the events described, and therefore its admission into evidence may not be supported on this theory.
We do not reach the question of the possible violation of defendant’s rights of confrontation and cross-examination by the admission of statements under the “past recollection recorded” theory. While this is a serious constitutional question, a broad prohibitive rule may not be the best course to follow. For example, in a metropolitan area such as Wayne County, a pathologist who' is required to perform autopsies on numerous victims of homicide during the course of any given year could not possibly retain an independent recollection of each examination. Yet his testimony is an indispensable factor in establishing the corpus delicti in any prosecution of such homicide cases. A blanket exclusion of testimony based on “past recollection recorded” might well render any prosecution impossible.
We see other situations where such testimony would have to be admitted, but to enumerate now is unnecessary.
Reversed and remanded.
Fitzgerald, J., concurred.
The fact that defense counsel later used the fact that “Miranda” warnings were printed at the top of the sheet to discredit Kosecki by suggesting that he was a suspect is irrelevant. Counsel’s objection had been preserved and he was merely attempting to make the best of a bad situation.
Referring to defendant, Richard Forgash.
See Hill v Sarbor Steel & Supply Corp, 374 Mich 194, 215 (1965).
People v Hobson, 369 Mich 189 (1963), has been cited for that proposition; however, only three of the seven justices participating in that case concurred in the opinion which advances that proposition. See Zirkalos v Zirkalos, 326 Mich 420, 424 (1949). | [
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Per Curiam.
The plaintiff, an employee of the defendant, brought this action seeking money damages and an injunction. The trial court granted the defendant’s motion for summary judgment and we affirm.
On two occasions the plaintiff was stopped by plant security guards as he was attempting to enter the plant after his lunch hour. On each occasion he was asked to open a paper bag he was carrying. He refused to do so. On at least one of these occasions he suffered a short lay-off as a disciplinary measure. The plaintiff now contends that the company’s action was tortious.
An employer may, as a condition of employment, require that an employee submit to a reasonable examination when he enters the plant. The defendant filed a motion for summary judgment, accompanied by the affidavits required by GCR 1963, 117.3, raising this defense. The point having been put in issue it was necessary for the plaintiff to state with specificity the facts on which he relied. He did not do so. Therefore, summary judgment under GCR 1963, 117.2(3) was appropriate.
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Fitzgerald, J.
This case involves a claim and delivery action commenced by plaintiff, Owens-Corning Fiberglas Company, on January 17, 1969, in the Muskegon County Circuit Court. Plaintiff sought thereby to obtain a determination as to the legal title to, and the right to possession of, a quantity of ceiling tile. Plaintiff, as materialman, had supplied the tile to deféndant Holland Tile Company, Inc. Holland, as subcontractor, agreed to install said tile at a Fruitport, Michigan, school construction site for defendant Osterink Construe-, tion Company, the general contractor at the site. Defendant Holland failed to complete the job, and plaintiff endeavored to regain possession of tbe tile at tbe site. TJpon refusal of defendant Osterink to deliver tbe tile to plaintiff, tbe present action was instituted. A nonjury trial was beld before tbe Honorable Albert J. Engel, Muskegon County Circuit Judge, on January 7, 1971. By opinion dated January 19, 1971, tbe court determined that tbe taking, by plaintiff, of tile from tbe construction site following commencement of tbe claim and delivery action was wrongful, and that defendant Osterink was entitled to recover tbe value of tbe same in tbe amount of $6,105 from plaintiff. Tbis appeal was filed on April 20, 1971, subsequent to tbe trial court’s denial of plaintiff’s motion for new trial.
In its original complaint, plaintiff averred (1) that it bad sold ceiling tile to defendant Holland; (2) that defendant Holland had taken possession of tbe tile and transported tbe same to tbe Fruitport, Michigan, school location; (3) that when defendant Holland was unable to pay for tbe tile, it signed a written instrument returning and assigning title to tbe tile to plaintiff; and (4) that defendant Osterink was wrongfully bolding the tile contrary to plaintiff’s ownership right.
Defendant Osterink filed an answer and counterclaim on February 5, 1969. By answer, defendant (1) admitted possession of tile of tbe description and value set forth in plaintiff’s complaint; (2) admitted that defendant Holland bad transported and delivered tbe tile to it at tbe Fruitport school location prior to the seizure by plaintiff of tbe same after commencement of tbis action; (3) denied that it bad been wrongfully bolding tbe tile and stated that it bad good title to tbe property at tbe time of plaintiff’s seizure of tbe same; (4) denied that plaintiff was entitled to possession of tbe tile and stated that title thereto had passed to defendant Osterink at the time of commencement of this action; and (5) denied that it had been requested to deliver the property to plaintiff or that it had unlawfully detained the same.
By counterclaim, defendant averred in part in count I thereof as follows:
“3. Prior to January 17, 1969, Osterink had entered into a contract with defendant Holland Tile Company for the furnishing of labor and materials necessary to accomplish acoustical treatment of the Fruitport Middle School (referenced as Fruitport High School in plaintiff’s complaint), Fruitport, Michigan.
“4. Said contract contained no explicit agreement as to passage of title.
“5. Prior to January 17, 1969, defendant Holland Tile Company had, pursuant to said contract, physically delivered certain ceiling tile into the possession of Osterink at the Fruitport Middle School site.
“6. [7] On Friday, January 17, 1969 [and Monday, January 20; 1969], Owens-Corning, * * *
and/or those acting in concert with them removed from said site [ceiling tile therein described].
* # #
“9. As a result of said wrongful taking, Osterink has been compelled to expend substantial amounts of time and money to obtain additional materials in replacement for those taken by Owens-Corning, in order to fulfill its contractual obligations on the job site.”
Plaintiff, by answer to defendants’ counterclaim, filed on May 22, 1969, stated in part:
“3. Answering Paragraph #3, Plaintiff admits same.
“4. Answering Paragraph #4, Plaintiff neither admits nor denies same and states that the instrument will speak for itself.
“5. Answering Paragraph #5, Plaintiff admits that the tile was delivered to the Fruitport Middle School site, but denies that Defendant acquired any interest therein until it either paid for said tile or it was installed on the job.
“6. [7]. Answering Paragraph #6 [and Paragraph #7], Plaintiff admits having removed certain tile from the Fruitport Middle School, which tile was owned by your Plaintiff.”
Following the filing by plaintiff, Owens-Corning Fiberglas Company, of a motion for summary judgment on March 3, 1969, and the denial, by the court, of said motion by opinion dated May 8, 1969, plaintiff filed an amended complaint on May 22, 1969. Therein, plaintiff averred in part:
“2. That on or about November 25, 1968, and December 13, 1968, Plaintiff delivered merchandise (in the form of ceiling tile) to Holland Tile Company and delivered same to Fruitport School in Fruitport, Michigan. That balance owed to your Plaintiff for said merchandise is $7,500.
“3. That Plaintiff later discovered that Holland Tile Company was in fact insolvent at the time credit was extended. That the aforesaid Holland Tile Company had represented itself as solvent to your Plaintiff in writing within three months prior to delivery of the material.
“4. That the aforesaid Holland Tile Company revoked its acceptance of the merchandise and. re-vested title in Plaintiff by a written instrument dated January 14, 1969.
“5. That Defendant Osterink Construction Company was at no time owner of the real estate or property known as Fruitport School in Fruitport, Michigan, hut being general contractor it had keys to the doors of said building.
“6. That when Plaintiff attempted to peacefully recover its property defendant wrongfully and unlawfully refused access to the premises to your Plaintiff so as to make it impossible for Plaintiff to recover its property and necessitated the Plaintiff incurring the expense of a claim and delivery action.
“7. That at no time had Plaintiff’s material been installed on the project nor had defendant Osterink Construction Company ever purchased or paid for same.
* * #
“9. That Plaintiff has good and lawful title to the material heretofore described in the Claim and Delivery and was entitled to possession thereof.
Defendant Osterink’s answer to the foregoing amended complaint, filed on June 1, 1970, stated in part:
“2. This defendant admits that tile was delivered to the Fruitport school site in Fruitport, Michigan and neither admits nor denies the balance claimed owing in paragraph 2 of the amended complaint. The balance of said paragraph 2 is denied.
“3. Neither admitted nor denied for lack of sufficient information on which to form a belief.
“4. Assuming the authenticity of Exhibit 1 to plaintiff’s complaint [the latter dated January 14, 1969, footnote 1], this defendant states that the exhibit speaks for itself and the allegations of paragraph 4 of the amended complaint are legal conclusions not requiring answer.”
Defendant also denied the averments of paragraphs 5-7 and 9 of plaintiff’s amended complaint.
Following the issuance by the trial court of its decision of January 19, 1971, wherein it was held that title to the ceiling tile in question had passed to defendant Osterink, plaintiff’s motion for new trial was filed on February 3, 1971, and denied by order entered on April 5, 1971. In that motion, plaintiff alleged (1) that the trial court based its decision upon issues which were not presented by the parties’ pleadings; (2) that the decision was contrary to the evidence presented and the applicable law; (3) that the trial court committed errors of law and fact; and (4) that the trial court committed error in denying plaintiff’s motion for summary judgment.
On appeal, plaintiff raises three assertions of error which, as restated, will be considered in the order presented.
I. Did the trial court base its decision upon an issue outside the scope of the pleadings and evidence and thereby commit error?
Plaintiff claims that the trial court entered judgment based solely upon the issue of “abandonment”, and committed error in so doing; the only issue raised by the pleadings having involved the question of title to the ceiling tile in question and whether said title had passed from defendant Holland to defendant Osterink. It argues that the court “avoided this issue somewhat”. Plaintiff cites authority in support of the proposition that a judgment deciding matter foreign to the issues framed is void, and asserts that the judgment herein, not having been based on the issue properly before the court, cannot stand.
Defendant Osterink counters by asserting that the issue raised by plaintiff, and considered herein, may readily be resolved by reference to the pleadings in this case and to the court’s opinion; that while plaintiff asserted that title had been revested in it by defendant Holland, defendant Osterink contended that at the time of seizure by plaintiff of the goods in. question, title thereto was in defendant; that the only relevance of the court’s reference to abandonment was to the question of when title passed; and that the court properly ruled, in accord with the pleading's filed, that title had passed to defendant Osterink on the basis of one of two theories, as set forth in the court’s opinion.
The trial court’s opinion appears to support the position taken by defendant Osterink and clearly shows that the court ruled upon the question of the title to the ceiling tile here in dispute. The court stated therein, in part, as follows:
“It was the claim of the plaintiff that although the material was delivered to the job site, title never passed at any time to the defendant Osterink and that as between it and Osterink, plaintiff’s right of possession and title were superior. Plaintiff relies primarily upon a claim of a trade custom that title' did not pass until the materials were actually installed pursuant to the contract between Holland and Osterink and further that by reason thereof, the document which is plaintiff’s exhibit II, dated January 14, 1969, vested title to the tile in plaintiff.
“It was the claim of the defendant that under the sales provision of Uniform Commercial Code, 19-.2401(2) title passed to the buyer at the time the seller completed his performance with reference to the physical delivery of the goods.
“It is uncertain from the proofs as to the exact date on which the final shipment was delivered to the job site. According at least to the invoices which are plaintiff’s exhibit I, the last shipment was sent by plaintiff to Holland Tile Company, c/o Fruitport School, Fruitport, Michigan, from Mobile, Alabama, on December 23, 1968. It was the testimony of Osterink’s superintendent, Marion DeYoung, that the last shipment arrived on the site in the early part of January and that he contacted Holland to advise them of this. At this time, he was told by Holland that they were not coming back on the job and to go ahead and unload the material on the site. He testified that Holland never thereafter showed upon the job. Mr. DeYoung then called Leonard Osterink, president of Osterink Construction Company, and advised that Holland had removed all of its equipment, although the tile still remained on the site. Leonard Osterink then called Warren Drooger, president of Holland, and asked why all the equipment had been so removed. Drooger then told Mr. Osterink that they did not intend to complete the job and they discussed what was then to be done, particularly with regard to material. It was Leonard Osterink’s testimony that Warren Drooger then told him that although they could not complete the job, there was enough tile, except for the ceramic tile for the pool, to enable the job to be completed. * * *
“The record is void of any express agreement, written or oral, as to the question of passage of title at the time the tile was delivered to the site. Accordingly, under the provisions of MSA 19.2401(2), the court is of the opinion that title to the tile in question passed from and out of Owens-Corning not later than the time of its delivery on the site. The question then becomes whether or not by reason of Holland’s contract with Osterink, title then simultaneously passed from Holland to Osterink, even though the tile had not as yet béen installed.
“The court’s view of the foregoing facts and all the other evidence which it has also carefully considered, differs somewhat from the theories of either of the parties. Regardless of whether or not in a strictly technical sense title passed to Osterink simultaneously with delivery of the material, it is clear to the court that upon its arrival on the site, Holland had already abandoned the job and, in fact, had removed all the equipment which it conceived it had a right to remove under the circumstances. Thus, if Osterink was not immediately vested with title by operation of law, it is clear that in the conversations which Leonard Osterink had with Warren Drooger, as well as Marion DeYoung’s conversation when the last load was delivered, clearly indicates to the court an intention by Holland to abandon the job and the material and to relinquish whatever rights Holland had in it at that time to' Osterink. Thus, under either theory, at the time of the delivery of the last shipment or at the latest at the time of the conversation between Mr. Osterink and Mr. Warren Drooger, title passed to Osterink. It, therefore, follows that as against Osterink, Owens-Corning could not have been granted any superior rights in the material by virtue of the letter of January 14, 1969, for the simple reason that at that subsequent time, Holland Tile had no title or possession to transfer. It, therefore, also follows that the plaintiff’s case for claim and delivery must fail.”
Plaintiff does not assert that the result reached by the trial court, decreeing title to the tile to have become vested in defendant Osterink, was erroneous, nor does it cite any authority which would support such a contention. That portion of the trial court’s opinion above quoted clearly reveals, contrary to plaintiff’s position, that the issue framed by the pleadings — title to the ceiling tile — was met head-on by the court and resolved in favor of defendant _ Osterink. No error appears in regard to this issue.
II. Did the trial court commit error im denying plaintiff’s motion for summary judgment¶
Plaintiff’s motion for summary judgment, filed on March 3, 1969, alleged in part:
“3. That defendants entire counterclaim recites a weak claim of ownership and claims damages from plaintiff for taking possession of same.”
Tbe trial court, in considering the foregoing averment, denied plaintiff’s motion by opinion filed on May 13, 1969. The court stated therein in pertinent part as follows:
“Plaintiff’s motion for summary judgment must fail. The answer of the defendant Osterink Construction Company clearly denies any wrongful holding of the property and alleges that it had good title to the property involved. This creates then a fact question for the determination of the court which requires a decision On the merits at the trial of the case. While it is true that the brief for plaintiff has appended to it certain photo copies of documents which it claims establishes title, still these documents are not made the part of any sworn affidavit or pleadings from which the court can take recognition in the motion. They are not admitted and if they were, they merely show the basis for the plaintiff’s claim of title. They do not, of themselves, necessarily preclude defendants from claiming otherwise, especially defendant Osterink Construction Company.”
Plaintiff claims that there were no material questions of fact raised in the pleadings and that, as a matter of law, plaintiff was entitled to entry of judgment in its favor. Plaintiff, contending that title passes to the buyer at the time and place at which the seller completes his performance, MCLA 440.2401(2); MSA 19.2401(2) (see footnote 2), asserts that performance in this case would not have been complete until defendant Holland, as seller, installed the tile in question.
Defendant Osterink asserts that, however weak plaintiff may have considered defendant’s claim of ownership to be, it thereby admitted that a dispute existed between the parties concerning the question of title; and that, where a dispute regarding a material fact exists, summary judgment may not be granted.
The record in this case reveals the existence of material issues of fact, pertaining to the opposing claims of ownership of the ceiling tile in question, so as to preclude entry of summary judgment. See Durant v Stahlin, 375 Mich 628 (1965); Beardsley v R J Manning Co, 2 Mich App 172 (1966); American Parts Co Inc v American Arbitration Association, 8 Mich App 156, 170 (1967). The trial court’s denial of plaintiff’s motion for summary judgment was proper.
III. Did the trial court commit error in admitting into evidence certain testimony and exhibits regarding estimates made by third parties who were not present in court and, therefore, not subject to cross-examination by plaintifff
The complained of evidence established the “replacement cost” ($6,105) of the material required to be purchased by defendant as a substitute for material removed by plaintiff from the construction site subsequent to the commencement of this action. The trial court stated in its opinion of January 19,1971, the following as regards the evidence under consideration :
“It is not feasible or possible even to order the return of the material actually recovered by the sheriff. Since that material was required by Osterink: in order to finish its job, it of necessity had to obtain replacement immediately and did so. * * *
“Interestingly enough, it is the testimony of the plaintiff’s witness to the effect that the value of the property so taken [by plaintiff from the construction site] was $7,500 whereas on the other hand it was the testimony of the defendant’s witness that with respect to replacement of the property taken, they incurred a loss of only $6,105. Since the law contemplates the awarding of compensation for the wrongful taking and is not now strictly based upon the full market value of the property, judgment must therefore enter in favor of the defendant Osterink Construction Company on its counterclaim in the amount of $6,105.”
Plaintiff asserts only that the admitted evidence, establishing the estimates as to replacement costs of the material in question, was hearsay and inadmissible. Defendant Osterink, however, counters by noting, as the trial court made clear, that, absent the admission of the evidence to which objection is made by plaintiff, the value of the replacement materials would have been $7,500, as specified in the complaint and as established by plaintiff’s own witnesses. Defendant therefore contends that the plaintiff was not prejudiced by admission of the evidence.
Plaintiff does not allege that it was prejudiced by the introduction of the evidence in question. The admission of the same hearing resulted in a material benefit to plaintiff — the difference between $7,500 and $6,105, or $1,395 — no prejudice was thereby incurred by plaintiff. G-CR 1963, 529.1.
Affirmed. Costs to defendant Osterink.
All concurred.
The letter from the vice president of defendant Holland Tile Company to plaintiff, Owens-Corning Fiberglas Company, dated January 14, 1969, and admitted into evidence, stated: “This letter hereby authorizes Owens-Corning Fiberglas to pick up all type S & Fiss ceiling board labeled Owens-Corning Fiberglas TJL from the Fruitport High School, Fruitport, Mich. This release also will release the Holland Tile Company for liability to Owens-Corning Fiberglas for this material.”
MCLA 440.2401(2); MSA 19.2401(2) provides in part: “Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place; * * * ”
It is to be noted that plaintiff did not state, in its motion for summary judgment, the ground upon which the motion was predicated. In GCR 1963, 117.2, it is stated:
“The motion for summary judgment shall state that the moving party is entitled to judgment in his favor because of any 1 of the following grounds:
“(1) the opposing party has failed to state a claim upon which relief can be granted.
“(2) the opposing party has failed to state a valid defense to the claim asserted against him.
“(3) that except as to the amount of damages there.is no genuine issue as to any material fact, and the moving party is therefore entitled to judgment as a matter of law.” GCB 1963, 117.3, requires that a motion based upon sub-rule 117.2(3) be supported by affidavits, as governed by GGB 1963, 116.4.
GCR 1963, 116.4, provides in part that such affidavits “shall be made on personal knowledge and shall set forth with particularity such facts as would be admissible as evidence to establish or deny the grounds stated in the pleading or motion.” The affidavit submitted with plaintiff’s motion did not conform to the foregoing sub-rule.
“No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court * * * is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice.” | [
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Holbrook, P. J.
This is an appeal from defendant’s jury conviction of assault with intent to commit rape (MCLA 750.85; MSA 28.280) following his third trial in the Becorder’s Court for the City of Detroit on charges arising out of the same occurrence.
Originally, defendant was tried for the crime of rape (MCLA 750.520; MSA 28.788) and convicted of the crime of assault with intent to commit rape by the recorder’s court judge sitting without a jury. On a motion for new trial, the judge, because he had been the prosecuting attorney at the time of the filing of the information, ordered a new trial for the defendant. Upon his second trial before a jury, the defendant was charged with, and convicted of, the crime of rape.
The defendant having been acquitted of the crime of rape on his first trial, our Court set aside the second conviction and remanded for a new trial. People v McPherson, 21 Mich App 385 (1970). On this appeal defendant raises five issues for determination.
I
Was defendant’s right to be protected from being twice put in jeopardy for the same acts, as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution, violated because defendant was subjected to a trial, the scope of which defendant had already been acquitted?
Defendant argues that his trial, while not formally on a charge of rape, violated his right to be free from twice being put in jeopardy for the same act because the scope of his trial included the elements of rape, an offense of which he had already been acquitted.
The people argue that the defense was responsible for bringing in evidence of rape and, in addition, that no objection was made to the testimony.
Defendant’s reason for claiming that the scope of the prosecution was too broad is that there was evidence of the element of penetration introduced into the trial. The crime of rape requires the element of penetration while the crime of assault with intent to rape does not.
As the primary authority for his argument, defendant cites United States ex rel. Hetenyi v Wilkins, 348 F2d 844, 867 (CA2, 1965), cert den, 383 US 913; 86 S Ct 896; 15 L Ed 2d 667 (1966). In Wilkins, petitioner was tried three times for first-degree murder. The first trial resulted in a jury conviction of second-degree murder, the second of first-degree, and the third of second-degree. In all three, the jury was told it could find petitioner guilty of first-degree murder, second-degree murder, first-degree manslaughter, or not guilty. Since after the first trial, the greatest offense he could constitutionally be tried for was second-degree murder, the prosecution for first-degree constituted double jeopardy. In the instant defendant’s first appeal, this Court agreed fully with this reasoning. People v McPherson, supra. In Wilkins, the final order of the Federal court states:
“The order below * * * is reversed, with instructions that tbe writ [habeas corpus] be granted unless, within a reasonable time, New York affords Hetenyi a new trial that conforms to the principles set forth in this opinion.”
Therefore, in Wilkins the trial court was permitted to try defendant therein for the fourth time for the crime of second-degree murd.er. Likewise, in this case, defendant was properly tried for the crime of assault with intent to rape.
Defendant cites two specific instances during trial where testimony to the higher offense was given: (1) On direct examination by the prosecutor of the alleged victim (stepdaughter of defendant) of the assault, the following transpired:
“Q. Then what did he do after he got in the bed?
“A. He laid on top of me.
“Q. Did you make any effort to push him away?
“A. Yes.
“Q. What did he say when you did that?
“A. He told me, ‘Don’t push anymore.’
“Q. Did he say what he would do if you did it?
“A. He said that he was going to kill me. But I kept pushing him.
“Q. Now did you — did he at anytime that you could see make — take his private parts from under his clothing?
“A. Yes.
“Q. Did he make any effort to place his private parts inside your private parts ?
“A. Yes.
“Q. Did you feel his private parts in connection with your private parts ?
“A. Yes.
“Q. Then what happened?
“A. He finished. He got up.
“Q. All right, then what did he do and what did you do?
“A. I went in the bathroom with my mother.
“Q. Well, describe your condition at the time, the way you felt, the way you behaved.
“A. I was hurt.”
(2) On cross-examination of the same witness by defense counsel the following took place:
“Q. Have you ever had sexual relations before December 18,1966?
“A. No.
“Q. Are you telling us then when your stepfather inserted his private parts into you that you were in pain, that you were hurt?
“A. Yes.
“Q. Did you tell your mother this?
“A. Yes.
“Q. Was there any blood?
Yes.
“Q. Where?
“A. It was on the bed and on me.”
It is important to note that defense counsel made no objection to the direct testimony and, additionally, he elicited testimony as to penetration on cross-examination. Normally, failure to object precludes raising the issue on appeal absent a miscarriage of justice. People v Panknin, 4 Mich App 19 (1966). There appears to be no such miscarriage of justice here.
Defendant also contends that he was prejudiced by the court’s jury charge which set out the elements of the crime of assault with intent to commit rape, i.e., that the judge put too much emphasis on the term “rape” as used in the element of intent. Upon reading the judge’s instructions, the term “rape” does not appear to be overly emphasized. It is only used in explaining the element of intent. The gist of the offense of assault with intent to rape is intent. People v Petty, 234 Mich 282 (1926). In ad dition, defense counsel, when asked if there were any objections to this charge, replied, “no objections”. Absent manifest injustice, failure to object to an instruction at trial precludes appellate review. GCR 1963, 516.2; People v McClure, 29 Mich App 361 (1971). There was no manifest injustice in the the court’s charge in the instant case.
II.
Do defendant’s three trials and continuing imprisonment constitute sufficient jeopardy so that a retrial would be in violation of the double jeopardy prohibition of the United States Constitution?
Defendant asserts that should this Court reverse and remand for a new trial, it would subject him to “continuing anxiety and insecurity” which the constitutional double jeopardy provision seeks to prevent.
The people counter with the assertion that no prejudice would result from a new trial since it would be for defendant’s benefit.
Defendant’s position is untenable because in the case cited by him, Wilkins, supra, the Court gave the State of New York the right to try the petitioner for the fourth time, under prescribed reasonable conditions. Wilkins is applicable to the instant case.
III.
Did the trial court err in failing to grant a mistrial because of the possible prejudicial effect of the statement as to defendant’s prior imprisonment?
Defendant argues that the statement made by complainant’s mother in regard to defendant having previously been in “Jackson” was so prejudicial that a mistrial should have been granted.
The people assert that the statement was merely part of the res gestae and was relevant to show a part of the transaction and why complainant’s mother was in such fear that she could not stop defendant’s attack upon her daughter.
The statement complained of on appeal was made by complainant’s mother on direct examination by the prosecutor. The context in which it took place follows:
“Q. I am directing your attention back to the date of Sunday, December 18, ’66. Do you remember that day?
“A. Yes, sir.
“Q. Did you go to — what time did you go to bed that day?
“A. I went to bed early.
“Q. What time?
“A. I couldn’t exactly say what time.
“Q. I mean as best as you can remember.
“A. I can’t say for sure whether it was after 12 o’clock or before.
“Q. I see. Was your husband home at that time?
“A. No, sir.
“Q. What about the children, any of the children? Did they stay awake after you went to bed?
“A. They was in bed before I was.
“Q.. They went to bed before you. Now while you were sleeping did anything happen to wake you up ?
“A. No, sir. Except that my husband, he came in about three or four o’clock that morning.
“Q. And tell us what happened when he came in.
“A. Well, he just came in, and as I woke up, like I usually do, and he came in and undressed and got to bed, got into bed, and he started having sexual relationships with me. And the whole time he was having it, he was asking me questions about did I love him, and I said, ‘Why, sure.’ I said, ‘Why do you ask me something like that, did I love you.’ He said, ‘I want to know do you love me.’ I said, ‘Yes, I love you.’ He said, ‘There is something I want you to do.’ I asked him what could I be doing this time of night. He said, ‘You’re going to do it regardless. You’re going to do it.’ And I asked him, ‘What?’ You’re going out and get out this bed and go in and tell * * * [name of victim] to come here.’ I said, ‘Tell * * * [name of victim] to come here, for what?’
“Q. Just tell it slowly. Just the way it happened.
“The Court: Would you get some water for the witness.
“(Court officer Johnson brought a cup of water to the witness.)
“A. I said, ‘Tell * * * [name of victim] to come here for what?’ He said, ‘You just do what I said. Tell her I said “Come here.” ’ I said, ‘I’m not g’oing to do nothing like that.’ I said, ‘What’s wrong with you?’ I said, ‘You talk crazy.’ He said, ‘You just do what I tell you to do.’ I said, ‘I am not going to do that.’ He said, ‘Oh, yes, you are. You’re going to do it or else.’ I said, ‘Or else what? He said, ‘You’re going to do it.’ I said, ‘Oh, no.’ I said-, ‘I’m not going to do anything like that.’ I said, ‘You’re crazy.’ I said, ‘What’s wrong with you?’ I said, ‘Why you talking, acting like this?’ He said, ‘You just get her out that bed and get her.’ He said, ‘If you don’t,’ he said, ‘If you don’t get her,’ he said, ‘You’re going to wish you had, too.’ He said — he said, ‘You just — ’ He said, ‘Don’t take too long doing it. I mean get out there and get her. And you had better not wake those kids.’
“And at that time I was so scared I didn’t know what to do. I jumped up before I knew it. He said, ‘You go on in.’ And he said, ‘I mean you better not wake them up.’ He said, ‘If you do, you will be sorry.’ He said, ‘Because I don’t care no more about nothing.’ He said, ‘Next time I go to Jackson, it will be for something.’ So I go on in the room.”
The defense counsel then moved for a mistrial which was denied by the court. Defendant refers us to the opinion of our Court in the first appeal of the instant case wherein it is stated at p 398:
“On remand all references to prior conviction or confinement except by proper evidentiary procedure are to be avoided.”
This admonition was not in reference to the “Jackson” statement, but to a remark made by the prosecutor in closing argument. On p 398 in the same opinion our Court stated:
“It has long been settled law in this state that evidence of former convictions or confinement is inadmissible unless it is material and relevant to the issue being tried. People v Fleish, 321 Mich 443 (1948).”
Therefore, if the reference to “Jackson” is relevant and admissible under proper evidentiary procedure, then there is no error.
The people’s contention is that the statement is part of the res gestae of the offense. In People v Kayne, 268 Mich 186, 191-192 (1934), the Court stated:
“ ‘Res gestae are the circumstances, facts and declarations which grow out of the main fact, are contemporaneous with it, and serve to illustrate its character.’ Stirling v Buckingham, 46 Conn 461.
“ ‘No inflexible rule has ever been and probably never can be adopted as to what is a part of the res gestae. It must be determined largely in each case by the peculiar facts and circumstances incident thereto; but it may be stated as a fixed rule that, included in the res gestae are the facts which so illustrate and characterize the principal fact as to constitute the whole one transaction, and render the latter necessary to exhibit the former in its proper effect.’ Chicago & E R Co v Cummings, 24 Ind App 192, 209; 53 NE 1026, 1031.
“ ‘And as long as the transaction continues, so long do acts and deeds emanating from it become part of it, so that, describing it in a court of justice, they can be detailed. * * * Nor are there any limits of time within which the res gestae can be arbitrarily confined (citing Wharton on Criminal Evidence [9th ed], § 262).’ Territory v Clayton, 8 Mont 1; 19 P 293, 297.”
See also People v Noble, 23 Mich App 100 (1970); 1 Gillespie Michigan Criminal Law & Procedure (2d ed), § 434, p 527. It is reasonable to conclude that the witness’s statement was relevant in that it showed the circumstances and her fear of defendant and that defendant had a reason to carry out his threats of violence. Also, the statement was made just before the assault took place and was part of the continuing sequence of events surrounding the offense. It follows that the statement was properly introduced as part of the res gestae.
Defendant cites People v Camel, 11 Mich App 219 (1968), which is distinguishable on the facts. See also, People v Greenway, 365 Mich 547 (1962). In Camel, a prosecution for larceny, evidence of the defendant’s prior confinement in Jackson prison came in first at a Walker hearing and later by direct examination of the same witness by the prosecutor at trial. As in the instant case, defendant immediately objected, asked for the jury to be excused, and asked for a mistrial. This Court held that the failure to grant the motion for mistrial was reversible error. Its reasoning was as follows, at pp 222-223:
“In view of the prior testimony at the Walker hearing, the objectionable response by this witness could have been anticipated. Since the trial judge is charged with the ultimate duty to control the proceedings before him, and since he as well as the prosecutor failed to protect the defendant, when the damage was done by this testimony the court should have granted the motion for mistrial.”
An important difference between Camel and the instant case is that in Camel the statement of prior imprisonment was not “germane” to the people’s case, whereas, here, the reference to “Jackson” was part of the res gestae and therefore “germane”. See People v Fleish, 321 Mich 443 (1948).
We rule that there was no error as to defendant’s issue three.
IV.
Did the trial court err in allowing into evidence an act similar and subsequent to the alleged act defendant was charged with?
Defendant claims that the testimony by complainant’s mother as to a similar subsequent incident as the one charged was improperly used by the prosecution to show intent, and that it should not have been admitted to show reason to contact the police.
The people assert that the testimony was properly admitted under the statute allowing proof of similar acts to show intent.
The testimony complained of occurred in the following direct examination of Mrs. McPherson by the prosecutor:
“Q. Well, what prompted you to get in touch with the police at all, if you ever did?
“A. Well, I knew something had to be done, and the incident—
“Q. What made you finally go to the police?
“A. Well another incident came up.
“Q. What do you mean by another incident?
“A. I had'another incident with him that brought it all out, because—
“Q. Did it have any connection with * * * [name of victim] ?
“A. Yes, sir.
“Q. What connection did it have with * * * [name of victim] ?
“A. Well, this — let’s see — this happened a couple days after this incident.
“Mr. Sapala [defense counsel]: Your Honor, I am going to object to any testimony about any subsequent incident, whatever it might be, in this case. I don’t think it’s material.”
After giving the jury a general instruction about the effect that objections by attorneys should have on them, a conference was held at the bench. The prosecutor stated that his purpose for eliciting the testimony was not to show intent but to show what prompted the witness to call the police. The judge then overruled the objection. No instruction as to the limited purpose of the evidence was given nor was one specifically requested by defendant. The judge, with counsel still at the bench, stated his reasons for overruling the objection and warned the prosecutor to be careful as follows:
“I am aware, however, that we have a statute that permits you to show similar acts and circumstances as evidence of intent. And it’s really in reliance upon that statute that I am overruling this objection, with the assurance by you that what you are going into here is evidence concerning another attempt to do an act of the same character as the one on which he is on trial. Is that right?”
The prosecutor answered in the affirmative and continued questioning the witness where he brought out the fact that the second incident was similar to the first.
“ ‘The general rule is well settled that in a criminal trial evidence of other, distinct offenses is not admissible even though they are of the same kind as the offense charged. People v Schweitzer, 23 Mich. 301 (1871).’” People v Heiss, 30 Mich App 126, 130 (1971).
However, MCLA 768.27; MSA 28.1050 is a statutory-exception to the general rule. It reads as follows:
“In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.”
Defendant contends that subsequent similar acts while relevant to show conspiracy, modus operandi, etc are not relevant to show intent. However, this Court in People v Flansburgh, 24 Mich App 470, 472 (1970), stated that “under the * * * statute * * * the prosecution is not allowed to introduce evidence of another and distinct offense by the accused unless the question of intent is at issue, whereby such evidence is admissible for the limited purpose of establishing a ‘scheme, plan or system’ ”. Therefore, evidence of subsequent similar acts can be used to prove intent. In a prosecution for assault with intent to commit rape, intent, of course, is at issue. People v Petty, supra.
Defendant also contends that the disputed testimony could not be used to show the reason for contacting the police. He cites People v Mooney, 363 Mich 454 (1961), as authority. However, Mooney was a prosecution for gross indecency and evidence of other acts of gross indecency is not admissible under the statute. People v Heiss, supra. In Mooney, the prosecution attempted to get this evidence in under the disguise of using it to show the circumstances leading to the defendant’s arrest. The evidence was not otherwise admissible, whereas in the instant case it was. Therefore, the evidence of the subsequent “incident” in the case at bar was properly admitted under MCLA 768.27; MSA 28.1050.
V.
Did the trial court err in not instructing the jury as to the relevancy of the evidence of a similar subsequent act?
Defendant now contends that even if the evidence discussed in the preceding issue is admissible, an instruction should have been given by the court as to its limited purpose, either immediately or at the close of proofs.
The people assert that no limiting instruction was necessary because none was requested nor was there any objection to the failure to give a limiting instruction by defendant as required by GrCR 1963, 516.1, 516.2; and in addition, that error, if any, was harmless beyond a reasonable doubt because of the overwhelming evidence against defendant.
The most recent pronouncement by the Supreme Court on this precise question is set forth in the case of People v Kelly, 386 Mich 330 (1971), aff'g People v Kelly, 26 Mich App 148 (1970).
Kelly, supra, involved a conviction of defendant therein of the felonies of carnal knowledge of a female with force against her will (MCLA 750.520; MSA 28.788), and robbery armed (MCLA 750.529; MSA 28.797). Testimony was properly admitted of a previous similar crime under MCLA 768.27; MSA 28.1050, to show a scheme, plan, or system on the defendant’s part in performing the acts.
In Kelly, supra, Mr. Justice Williams, speaking for the Court, stated in part as follows:
“The defendant contends that the trial court erred in failing to give immediately an instruction as to the limited purpose for which the jury could consider the evidence discussed in Part I of this opinion. The defendant argues that such an immediate instruction is necessary even if defense counsel does not request it.
“When the evidence to show a scheme, -plan or system was introduced, the defense counsel did not request a limiting instruction, and the trial court gave no such instruction. In its final charge, however, the trial court did give very specific instructions to the jury as to what purpose that evidence could serve. The exact language which the trial court used is set out in the footnote below. [Footnote omitted.]
“In People v Nawrocki, 376 Mich 252 (1965), the prosecution introduced evidence of other offenses to show defendant’s fraudulent scheme, plan or intent. Counsel for the defendant did not request a limiting instruction, and none was given at any time by the trial court. This Court affirmed the defendant’s conviction in that case though no instruction was ever given, and stated:
“ ‘Defendant did not request any instructions which the court refused to give, nor did defendant call to the trial court’s attention any objection to the instructions given.’ 376 Mich 252, 255. “Therefore this Court in Nawrochi required no limiting instruction at all, unless such instruction was requested by defense counsel. In the instant case, a specific limiting instruction was given in the final instructions to the jury, though it never was requested by defendant’s attorney.
“The defendant cites People v Ashar, 8 Mich App 95 (1967), for the proposition that when evidence is admitted to show scheme, plan or system, the trial court must sua spoute instruct the jury immediately that such evidence may be considered only for that purpose. While Askar contains language to that effect, the decision in that case is based upon the fact that the evidence in question was inadmissible. Therefore the language concerning the necessity of immediate instructions is dicta. No case, court rule, statute, or treatise cited in Askar supports this dicta.
“The Askar opinion is not the sole expression of the Court of Appeals concerning this issue. In People v Anderson, 13 Mich App 247 (1968), prior illegal sales of narcotics were introduced as evidence to show a scheme, plan or system on the part of the defendant. No limiting instruction was requested by defense counsel, and none was given by the trial court. In affirming the defendant’s conviction, a Per Curiam opinion stated:
“ ‘Defendant asserts as error the trial court’s failure to give an instruction limiting the jury’s consideration of the police informer’s testimony of the alleged prior offense. Defendant did not request such an instruction nor was any objection made pursuant to GCR 1963, 516.2. In the absence of a request or proper objection, the trial court was not required to give the limiting instruction now sought. People v Nawrocki, 376 Mich 252 (1965).’ 13 Mich App 247, 250.
“As he should in this case, the trial judge gave a limiting instruction which protected the rights of the defendant. There may be times when such limiting instruction should be more properly given at the time such evidence is introduced. However, in the absence of a specific request at that time or a showing of a miscarriage of justice, a limiting instruction in the final instructions to the jury will be deemed sufficient.”
The question now arises as to whether the rule set down in Kelly, supra, is to be applied prospectively, or is it to have a retroactive effect? Inasmuch as the Kelly opinion (1) specifically sets forth the ruling made by the Supreme Court in the case of People v Nawrocki, supra, (2) the right to have a limiting instruction is not predicated on a constitutional ground, and (3) absent a declaration in Kelly to the effect that Nawrocki, supra, was overruled, we are constrained to interpret Kelly as having prospective application only.
The instant trial was held on April 15 and 16,1970, which was a considerable period of time before the Kelly decision and at a time when the Nawrochi rule was in full effect. Therefore, we determine that because defendant failed to request a limiting instruction and did not object to the court’s failure to give such an instruction, which is required by GfCB. 1963, 516.1 and 516.2, there was no error.
In any event, we are satisfied that if we are in error as to the interpretation of People v Kelly, supra, that the error in failing to give a limiting instruction by the trial court was harmless. None of the details of the subsequent “incident” were gone into by the prosecution. We are convinced that the evidence which convicted the defendant of the crime charged was not only sufficient to convict beyond a reasonable doubt but also was overwhelming. This determination is made without repeating all the sordid facts of this case. Because the evidence was so overwhelming, we find that such error was harmless beyond a reasonable doubt. People v Wardell, 26 Mich App 69 (1970); Chapman v California, 386 US 18; 87 S Ct 824; 17 L Ed 2d 705 (1967).
Affirmed.
All concurred.
21 Mich App 385 (1970).
People v Walker, 374 Mich 331 (On Rehearing, 1965). | [
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Holbrook, J.
In this cause defendant Herman Brown and his codefendant, Edward Lewis Manuel, were tried on October 26, 1970, in the Recorder’s Court for the City of Detroit before a jury on charges of possession of burglary tools and attempted breaking and entering of a business place with intent to commit larceny therein contrary to MCLA 750.116, 750.110, 750.92; MSA 28.311, 28.305, 28.287. Edward Lewis Manuel was found not guilty. Defendant Herman Brown was found guilty of both offenses and sentenced to prison terms of 7 to 10 years and 3-1/2 to 5 years, respectively.
On this appeal three issues are raised by defendant. After a careful review of the record, we determine that two of these issues are without merit. We restate the remaining issue:
Was reversible error committed by the trial court in admitting the preliminary examination testimony of the res gestae witness Sergeant Charrier, without a prior showing by the prosecuting attorney that due diligence had been exerted to produce the witness at trial?
The rule of law concerning production of res gestae witnesses indorsed on the information is stated in the case of People v Zabijak, 285 Mich 164, 171-172 (1938), as follows:
“Due diligence must be shown by the prosecutor to produce witnesses whose names are indorsed on the information, and where they are material witnesses, it is the duty of the prosecutor to have subpoenas issued, and use other means at hand to have the witnesses present at the trial. People v Van-Vorce, 240 Mich 75 (1927).”
Also see, People v Moore, 306 Mich 29 (1943); People v O’Dell, 10 Mich App 87 (1968); and People v Kern, 6 Mich App 406 (1967).
The pertinent facts indicate notice was given by the court to the respective parties on August 26, 1970, setting the case down for trial commencing October 26, 1970. The two defendants were represented at trial by different counsel. The only testimony presented to the court in the presence of the jury concerning the availability of the res gestae witness, Sergeant Charrier, was given by the only other res gestae witness, fellow-officer Sergeant Robert Kinzel, who testified in part as follows:
“Q. You were on duty April 28, 1970, at about 5 o’clock or 5:30 in the morning?
“A. I was.
“Q. Where were you?
“A. I was in a scout car with. Sergeant Leroy Charrier.
“Q. Where is Leroy Charrier today?
“A. I don’t know exactly. He was traveling in Nevada.
“Q. Somewhere in Nevada?
“A. Yes.
“Q. He is not available today?
“A. No, he is not.”
The following occurred before the court in the absence of the jury:
“Mr. LaBret [assistant prosecutor]: Your Honor, we have something before the jury comes out.
“Your Honor, Sergeant Charrier, the partner of the previous witness, is somewhere between Laramie, Wyoming, and points west; but we have available the transcript of the examination where he testified, and he was examined and cross-examined in excruciating detail.
“The people would like to have permission to have the testimony read into the record pursuant to the statute.
“Mr. Tukel [defendant Brown’s counsel]: Which statute ?
“The Court: * * * It is 768.26, which reads as follows:
“Testimony taken at an examination, preliminary hearing, or at a former trial of the case, or taken by deposition at the instance of the defendant, may be used by the prosecution whenever the witness giving such testimony cannot for any reason be produced at the trial, or whenever the witness has, since giving such testimony become insane or otherwise mentally incapacitated to testify.
“Mrs. Borman [defendant Manuel’s counsel]: I would like to object to the nonproduction of the police officer.
“The Court: All right. There is an instruction on that. I will give it at the proper time to the jury.
“Anything else?
# # #
“Mrs. Borman: I am objecting to the nonproduction of the police officer. I believe that his absence is crucial. The whole case is based on the observation of the two police officers, who were the only witnesses. It is very material and the introduction of the transcript does not satisfy his privilege of confrontation and takes away the right of cross-examination.
“The Court: The objection is noted. I will overrule the objection.”
Immediately thereafter the preliminary examination transcript of Sergeant Charrier was read to the jury.
In the case of Barber v Page, 390 US 719, 724, 725; 88 S Ct 1318, 1322; 20 L Ed 2d 255, 260 (1968), the United States Supreme Court ruled that:
“A witness is not ‘unavailable’ for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.”
The Barber Court held that, since “the state made absolutely no effort to obtain the presence of Woods [the witness] at trial other than to ascertain that he was in a federal prison outside Oklahoma”, the state failed to make a good-faith effort to obtain the presence of such witness at trial, and therefore, the testimony of such witness taken at the preliminary examination should not have been introduced at defendant’s trial. The holding in Barber was given retroactive application in Berger v California, 393 US 314; 89 S Ct 540; 21 L Ed 2d 508 (1969).
Now it is true as the people contend that the statute, MCLA 768.26; MSA 28.1049, permits the prosecution to use a witness’s testimony taken at a preliminary examination to be admitted into evidence at trial “whenever the witness giving such testimony cannot, for any reason, be produced at the trial.” This provision is subject to the protection of the United States Constitution and the Michigan Constitution which gives a defendant the right to be confronted by a res gestae witness including the right of cross-examination. Barber v Page, supra; People v Zabijak, supra.
The prosecuting attorney in the instant case had a duty to show due diligence and a good-faith effort to obtain the presence of the necessary and impor tant res gestae witness, before his absence could have been excused and his preliminary examination testimony introduced at trial as provided in MCLA 768.26; MSA 28.1049.
We determine that the defendant had a right to have the indorsed res gestae witness present at trial because he was one of only two res gestae witnesses who purportedly viewed the crime. His testimony at the preliminary examination was highly damaging to the defendant, and the fact that Sergeant Charrier may have been subject to cross-examination at the preliminary examination does not satisfy the right to confrontation since that right also includes “the occasion for the jury to weigh the demeanor of the witness”. Barber v Page, supra; People v Nieto, 33 Mich App 535, 538 (1971).
The people claim that because defendant Manuel’s attorney made the objection to the nonproduction of the witness and defendant’s attorney failed to make a similar objection, the error is waived by defendant Brown’s silence. We do not agree. The defendants were jointly tried and the valid objection by the one defendant concerning a constitutional right when overruled by the court inures to the benefit of both defendants.
The transcript fails to disclose that the prosecuting attorney exerted any diligence or made any efforts to insure the presence of Sergeant Charrier at the trial. The contrary is indicated by the trial court record which discloses that the people had 60 days’ notice of the trial date and the witness, being a Detroit police officer, could have been notified to be present or, if necessary, subpoenaed.
The people contend that there is no error here because the court submitted the question of due diligence to the jury. People v Kern, supra; People v Todaro, 253 Mich 367 (1931). This issue could not he determined by the jury because there was absolutely no showing by the prosecuting attorney that he had exerted any diligence or good-faith effort to secure the presence of the witness at trial.
Reversed and remanded for new trial.
All concurred. | [
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Van Valkenburg, J.
Plaintiffs brought a class action seeking a declaratory judgment and injunctive relief against the erection and enforcement of signs prohibiting the operation of two-wheeled motor vehicles on certain streets within the City of Detroit. Plaintiffs asserted that the ordinance under which such streets were closed to two-wheeled motor vehicle traffic was violative of their rights guaranteed by the equal protection, due process, and reserve powers provisions of the Michigan Constitution and the equal protection and due process provisions of the United States Constitution. The trial court granted the asked for relief. Prom that judgment, defendants appeal.
Tbe facts are not materially in dispute. Over the years the number of such vehicles has very materially increased to the point where groups frequently drive on the streets with accompanying noise, much to the annoyance and discomfort of the residents. Complaints became so numerous that, beginning in 1966, the Department of Streets and Traffic began the practice of entertaining petitions requesting that motorcycles be barred from certain restricted streets. The general nature of the plan undertaken to meet this situation was set forth in defendants’ brief, from which we quote:
“Procedurally each • petition for the erection of signs was checked by the Department of Streets and Traffic to determine first, that a legitimate problem existed and, second, that a majority of the residents in the affected area were in favor of the prohibition. When these two elements were found to concur, the signs were erected and a subsequent resolution was presented to the Common Council for its formal approval.”
At the time that this complaint was filed, signs had been erected on approximately 237 blocks within the city.
The brief testimony offered by the plaintiffs included one retailer who claimed that his business had decreased because of the fact that his customers could not reach his garage without driving through a restricted street. Another witness stated that he could not drive to his own home and still another, a 74-year-old man who had owned and operated a motorcycle since 1922, advised the court that he now found it impossible to visit his daughter in another part of the city.
The defendants offered evidence as to the complaints regarding excessive noise and speed.
Plaintiffs concede that the defendant City of Detroit has the authority to regulate traffic upon its streets, providing that such regulation does not arbitrarily or unreasonably prohibit or restrict the use of such public ways. Therefore, the only issue before this Court is whether the ordinance herein considered is arbitrary and unreasonable in a constitutional sense.
The defendants obviously have a legitimate interest in regulating traffic flow upon its streets so as to eliminate excessive speed and noise which would be injurious to the health and safety of the general public; however, the blanket exclusion of all two-wheeled motor vehicles from the designated streets sweeps too broadly in an effort to eliminate the above-mentioned deleterious activities. While some motorcycle riders may well drive vehicles which are excessively noisy at speeds in excess of the posted limits, there is certainly no valid basis for applying the “Hell’s Angels” conception of the motorcycle rider to all motorcycle users.
Motorcycles, along with automobiles, are considered to be motor vehicles. MCLA 257.31; MSA 9.1831; Murfin v Detroit & Erin Plank-Road Co, 113 Mich 675 (1897); People v Smith, 156 Mich 173 (1909). Since the problems of excessive speed and noise are not problems which relate solely to the nature and manner of operation of motorcycles, it is unreasonable and arbitrary to deny the use of the public streets to motorcycles, and yet, allow automobiles to continue to use those streets. The proper solution to’ the problems of excessive speed and noise is the enforcement of the speed and noise laws and ordinances.
The burden of proof of the allegation that the ordinance is arbitrary, unreasonable, and discriminatory is upon the plaintiffs. Michigan Towing Association, Inc v City of Detroit, 370 Mich 440 (1963); Allen v State Highway Commissioners, 338 Mich 407, 413 (1953). Since the plaintiffs met that burden, the trial court properly held the ordinance to be unconstitutional and granted the requested relief.
While we appreciate the fact that the improper operation of these vehicles can result in a situation which can be most annoying to the average citizen, we cannot ignore the fundamental constitutional rights of that segment of the population which chooses to use motorcycles as their mode of transportation.
Affirmed. Remanded for execution of an order as indicated by the opinion of the trial court dated November 5, 1970. No costs, a public question being involved.
All concurred.
Const 1963, art 1, §§ 2,17, 23 US Const, Am XIV. | [
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Holbrook, P. J.
Plaintiffs are owners of land located in Canton Township who brought suit in the trial court against defendant township and its building inspector, attacking the constitutionality of the subject zoning ordinance and asking for a writ of mandamus to require the building inspector to issue a building permit for construction of buildings and facilities incident to the planned establishment by-plaintiffs on their land of a mobile home trailer park.
After a full hearing, the trial court determined that the subject zoning ordinance was constitutional . and denied the writ of mandamus to plaintiffs.
Plaintiffs have appealed and assert two issues for consideration and determination.
I.
Is. the classification of AG-Agricultural to plaintiffs’ land under the zoning ordinance which prohibits plaintiffs’ property to be used for a mobile trailer park unreasonable and therefore unconstitutional?
Under authority of the Township Rural Zoning Act (1943 PA 184; MCLA 125.271; MSA 5.2963[1]), defendant township adopted a comprehensive zoning ordinance in July, 1967. The zoning ordinance was adopted subsequent to the adoption of a comprehensive development plan in May, 1965, which was preceded by several years of study and a report by a planning group.
The zoning ordinance divides the township into various districts with the subject land being zoned “AG-Agricultural District”, and the purposes of such a district are set forth in § 10.01 of the ordinance as follows:
“Agricultural districts are those open areas of the township where farming, dairying, forestry operations, and other rural activities are found. Vacant land, fallow land and wooded areas also would be included where such areas are interspersed among farms. Gradually, and based upon a logical comprehensive development plan, agricultural districts may be converted to other land uses. The_agricultural district protects land needed for agricultural pursuits from encroachment by untimely and unplanned residential, commercial and industrial development.”
The permitted uses of such a district are basically agricultural and low density residential.
A zoning ordinance is presumed reasonable and constitutional and objectors must assume the burden of proving it unreasonable. Hammond v Bloomfield Hills Building Inspector, 331 Mich 551 (1951); Bassey v City of Huntington Woods, 344 Mich 701 (1956); Patchak v Township of Lansing, 361 Mich 489 (1960).
In ruling on the claim of plaintiffs, we must judge this case on the particular facts and circumstances present. Korby v Township of Redford, 348 Mich 193 (1957); Christine Building Company v. City of Troy, 367 Mich 508 (1962); Brandau v Grosse Pointe Park, 5 Mich App 297 (1966).
Initially we can predicate a finding of reasonableness of the zoning ordinance on the master development plan, for it recommended plaintiffs’ land be zoned AG-Agricultural. Biske v City of Troy, 381 Mich 611 (1969).
The plaintiffs assert that mobile home parks are constitutional, legitimate, that they are needed and beneficial to society, and are prima facie so recognized in the law. Further, that it is the municipality’s burden to present competent evidence to support exclusionary ordinances. Bristow v City of Woodhaven, 35 Mich App 205 (1971). Unlike the Woodhaven case the instant ordinance does not exclude mobile home parks from the township, there being three separate areas in the township designated for this purpose. Five trailer parks are presently located on these areas with 1,555 sites. This represents the largest number of trailer park sites in any community in southeastern Michigan, with the exception of the City of Warren which has about 70 more sites.
The plaintiffs now assert there was not sufficient, competent evidence to show a real and substantial relationship between the public health, safety, morals, or general welfare, and the proposed use of the land to constitute a reasonable and legitimate exercise of the police power of the defendant township. Mulias v City of Trenton, 31 Mich App 535 (1971); Bristow v City of Woodhawen, supra.
Arguendo, assuming that this was the township’s burden, we now turn to the record and find the proofs showing the following factors present to justify the classification of plaintiffs’ land AGr-Agricultural, which have a real and substantial relationship to the public health, safety, morals, or general welfare of the inhabitants of defendant township.
1. It is an agricultural area. It was used as such during the 1970 growing season and planted to beans, wheat, and corn, and has been used for agricultural purposes for many years past.
2. All recent building in the area has been residential. There are many new homes in the area on plots of small acreage, some of them worth as much as $30,000.
3. The area is presently poorly served by roads and highways. Ford Road on the north is a paved state highway, but Napier Road on the west is a gravel country road. Cherry Hill Road on the south is a gravel country road west of Napier, but from Napier east to Ridge is a bound road that has had no care or maintenance for years, and is pot-holed and in poor condition.
4. The area is not served by any public water supply, and it will be years before public water supply can be brought to the area. In the meantime, what building there is in the area must be served by wells, and as the area is a moraine out-wash water supply from wells is problematical.
5. The area is not served by any public sewage disposal system, and will not support a high density of population for private disposal systems, and there is not adequate runoff for the effluent. Very few septic tanks are being approved in the area by the board of health because of inadequate percolation.
6. The drainage from the area must be carried by the lower branch of the Rouge River which at the site is just a good-sized creek. The erection of buildings with their attendant paved areas tremendously increase the water runoff of an area by prohibiting normal percolation. A trailer park would greatly increase the water runoff. Moreover, the Rouge must pass underneath a small factory which is just a few hundred feet downstream, and at that point could not accommodate additional runoff. There have been flood conditions recently which indicates that the present capacity for runoff is inadequate.
We are satisfied that defendant township presented sufficient evidence coupled with the recommendation contained in the master development plan to justify the zoning of plaintiffs’ land AGfAgricultural. The defendants having sustained their burden, we must now rule that the plaintiffs had the burden to show that the ordinance as applied to their property was unreasonable having no real and substantial relationship to public health, safety, morals, or general welfare of the community.
The trial judge ruled in part as follows:
“The issue raised before this court is the reasonableness, and therefore, the validity of the zoning ordinance upon which defendants rely in denying plaintiffs a building permit. In order to determine this issue, the court considered the evidence submitted on behalf of the parties in an effort to ascertain whether the plaintiffs could establish that the ordinance did not bear a real and substantial relationship to the public health, safety, morals, or general welfare. Pederson v Township of Harrison, 21 Mich App 535 (1970).
“While entertaining this evidence, the court was ever mindful that an ordinance carries the presumption of validity and that the party attacking a zoning ordinance has the burden of establishing 'its invalidity. Rottman v Township of Waterford, 13 Mich App 271 (1968).
“In view thereof, it was quite evident that many other but less important issues noted in the numerous cases on this subject would not be determinative in this case.
“Of primary concern to this court was whether or not plaintiffs would be able to, carry the initial, primary burden stated above.
“It is the opinion of this court that the record in this matter clearly discloses that plaintiffs * * * have failed to demonstrate that the zoning ordinance complained of does not bear a real and substantial relationship to the health and general welfare of the residents by failing to overcome the assertion that the ordinance protects against construction of a type which will attract and concentrate large numbers of people in an area where sewage, sanitation and water facilities are not available to prevent unsanitary and unhealthy conditions from resulting, and where facilities are inadequate to control the runoff of increased water so that flooding may result.
# # #
“In the case before this court we have been referred to facts and circumstances surrounding the inadequacy of sewage, sanitation and water facili ties, and the present inability to adequately control the runoff of increased surface water which would contribute to the possibility of flooding conditions. These bear a real and substantial relationship to the public health and general welfare, and the record in this matter is witness to the fact that the plaintiffs have failed to demonstrate that these alleged inadequacies will not result in the unsanitary and/or unhealthy conditions which the zoning ordinance is presumed to protect; and, which is therefore valid by virtue of its reasonableness under these existing circumstances.
# # #
“It is the opinion of this court that defendant has shown facts with respect to the inadequacy of sewage and sanitation facilities, as well as water supplies and the problems to be encountered by the flooding and possible other detrimental results arising from present inability to control an increased amount of surface water, from which a relationship between the zoning of the property and the proper exercise of police power can be inferred. And, in accordance with the grant of power affirmed in June v City of Lincoln Park, 361 Mich 95 (1960), this court exercises its judicial authority to find as a matter of fact that the plaintiffs have failed to sufficiently overcome these issues and therefore have not sustained their burden of establishing the invalidity of the ordinance as applied to their property.”
Our Supreme Court has on many occasions set forth our duty in regard to reviewing equity cases de novo, and reiterated the rule in the case of Biske v City of Troy, supra, pp 613-614:
“To quote Justice T. M. Kavanagh, writer of the Court’s opinion in the Christine Case (pp 517-518):
“ ‘We hear and consider chancery cases de novo on the record on appeal. Johnson v Johnson, 363 Mich 354 (1961); Osten-Sacken v Steiner, 356 Mich 468 (1959); Futernick v Cutler, 356 Mich 33 (1959); A & C Engineering Co v Atherholt, 355 Mich 677 (1959); Straith v Straith, 355 Mich 267 (1959); Ball v Sweeney, 354 Mich 616 (1958). This Court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases. This is primarily because the trial judge is in a better position to test the credibility of the witnesses by observing them in court and hearing them testify than is an appellate court which has no such opportunity. We do not ordinarily disturb the findings of the trial judge in an equity case unless, after an examination of the entire record, we reach the conclusion we would have arrived at a different result had we been in the position of the trial judge.”
We are not convinced that had we sat as trial chancellor in the instant case, we would have been compelled to reach a different result. We conclude that the findings of fact by the trial judge were proper and are substantiated by the record.
II.
Whether the zoning law was confiscatory because it would not allow plaintiffs to utilize their land for its most profitable use?
The plaintiffs assert that their land can best be used for a trailer park. The testimony indicates that the land as presently zoned is worth approximately $1,000 per acre, whereas if it were zoned to be used as a trailer park, it would be worth approximately $3,500 per acre.
In the case of Pederson v Township of Harrison, 21 Mich App 535 (1970), it was ruled that a zoning ordinance can be confiscatory where it makes the property subject to its regulation “almost worthless.”
Difference in value alone does not prove confiscation, Muffeny v City of Southfield, 6 Mich App 19 (1967) ; but it is an element which must be considered by the Court in determining whether in fact there is what amounts to a confiscation. Smith v Village of Wood Greek Farms, 371 Mich 127 (1963); and Krause v City of Royal Oak, 11 Mich App 183 (1968) .
A zoning ordinance is not confiscatory where the claim is merely that the property is not being put to its most profitable use. Patchak v Township of Lansing, supra, pp 496-497; and Paka Corporation v City of Jackson, 364 Mich 122 (1961).
The facts in the instant case and the Patchak case are nearly identical, including the fact that both parties purchased the land knowing or charged with knowledge of how it was zoned. Therefore, the Patchak case is directly applicable to the issue under discussion and precludes plaintiffs from prevailing pn their claim of confiscation.
Affirmed. Costs to defendants.
All concurred.
“In this instance we do not have a case where the land was not suitable to the purpose of the classification. It is not a question of unsuitability for residential or any other purposes except small farms and agriculture. Clearly, the south 10 acres and all of the surrounding territory were, at the time the ordinance was adopted in 1945, suitable for the uses enumerated under class “D”. The entire area, west, south, and east, was composed of small farms. This situation existed at the time the zoning ordinance was adopted in 1945. The plaintiffs were chargeable with the knowledge of the zoning when they purchased the property in 1953. The purchasers had no greater right to use the property for a nonconforming use than their seller had. Stevens v Township of Royal Oak, 342 Mich 105 (1955).” | [
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Memorandum Opinion.
Defendant was convicted upon his plea of guilty, of breaking and entering with intent to commit larceny. MCLA 750.110; MSA 28.305. He appeals as a matter of right.
An examination of the record and briefs discloses no prejudicial error.
Affirmed. | [
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Memorandum Opinion.
Defendant was convicted, sentenced and appeals. The people have filed a motion to affirm.
An examination of the records and briefs in this cause failed to demonstrate reversible error.
The motion to affirm is granted. | [
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Per Curiam.
Defendant Isaac Hayes was convicted by a jury of preparation to burn and sentenced to 2 to 4 years imprisonment. We reverse the conviction and remand the case for a new trial of the single count on which defendant was convicted.
I
The defense made a pretrial motion for suppression of defendant’s prior conviction of assault with intent to rob and steal being armed. The trial court granted the motion, stating:
"The Court: Okay. The motion is granted with the understanding, * * * that you’re free to seek to impeach prosecution witnesses if you wish if they do have any criminal record, but that if any are so impeached you should understand that my ruling is conditional, and that if it’s fair for you to bring out the record then I would regard it to be fair to the prosecution to do likewise. Otherwise the motion to suppress the criminal record is granted. It’s granted for the reason that I believe that a cautionary instruction that it only goes to credibility is not as useful as it ought to be, and that a criminal record tends to be more prejudicial than probative under the circumstances.
"Is that understood?
[Defense Counsel]: Yes, your Honor. Thank you very much.”
Thus the ruling, excluding evidence of the defendant’s prior conviction, was conditioned upon the defendant’s willingness to forego impeachment of prosecution witnesses. The effect, of course, was to place admission or exclusion of defendant’s prior conviction entirely within the control of defense counsel.
We hold this to be reversible error.
II
In People v Dennis Johnson, 85 Mich App 181; 270 NW2d 734 (1978), the trial court resolved the question of admissibility of the defendant’s prior convictions in much the same fashion as was done in this case. There, the court ruled the defendant’s prior convictions inadmissible upon the condition that the defense forego impeachment by prior conviction of the prosecution’s chief witness. The judge declared:
"Well, I will rule that it will remain that way. Either they both come in or they both state [sic] out and you decide which way you want to do it.”
The Court of Appeals held this ruling to be reversible error on the ground that the trial judge impermissibly delegated his discretionary power to the parties. People v Dennis Johnson, supra, pp 183-184. Such abdication, the Court of Appeals believed, was nothing less than a failure to exercise discretion, which this Court stated in People v Jackson, 391 Mich 323, 336; 217 NW2d 22 (1974), would constitute error. People v Dennis Johnson, supra, p 183.
The facts of this case fall squarely within the holding of People v Dennis Johnson, supra. In both cases the trial judge omitted to exercise his discretion and undertook instead to confer his discretion upon counsel for the defense by ruling evidence of the prior conviction to be conditionally admissible.
Although the prosecution apparently concedes the applicability of People v Dennis Johnson, supra, it maintains that the case was erroneously decided. To the contrary, we are persuaded that the rationale of that case was, and continues to be, sound. In addition, we disapprove the notion reflected in the ruling we now reverse that identical treatment of opposing parties in a criminal prosecution necessarily achieves a fair result. Symmetry is neither an object of criminal procedure nor a proper criterion of fairness.
In this regard, we note that considerations relating to the propriety of impeaching defendants and other witnesses by prior conviction are not identical. In all cases, of course, the relationship between a witness’s prior conviction and his or her present credibility must be examined. See MRE 403, 609(a)(2). When the witness is the defendant in a criminal case, however, the scope of the judicial inquiry must be broader. As Chief Justice, then Judge Burger recognized:
"A special and even more difficult problem arises when the prior conviction is for the same or substantially the same conduct for which the accused is on trial. Where multiple convictions of various kinds can be shown, strong reasons arise for excluding those which are for the same crime because of the inevitable pressure on lay jurors to believe that 'if he did it before he probably did so this time’. As a general guide, those convictions which are for the same crime should be admitted sparingly; one solution might well be that discretion be exercised to limit the impeachment by way of a similar crime to a single conviction and then only when the circumstances indicate strong reasons for disclosure, and where the conviction directly relates to veracity.” (Footnote omitted.) Gordon v United States, 127 US App DC 343, 347; 383 F2d 936, 940 (1967).
When judges are called upon to balance the "probative value” of a prior conviction for impeachment purposes against its "prejudicial effect”, it is manifest that closer attention to possible prejudicial effect is necessary when the witness sought to be impeached is the defendant.
In light of the foregoing, it follows that a ruling such as the one made in the trial court in this case constitutes an impermissible failure to exercise judicial discretion and denies a defendant the independent and individuated judgment to which he or she is entitled.
In order to decide his trial strategy, including whether to testify in his own behalf, the defendant was absolutely entitled to a ruling whether his record of prior convictions would be admitted against him; a ruling unconditioned by any consideration of his intended cross-examination and impeachment of the people’s witness. When the merits of impeaching a particular witness are considered separately, as they should be, it is plain that, if the facts so warrant, there is nothing inherently unfair about permitting prior conviction impeachment of a prosecution witness or witnesses while forbidding the same impeachment of the defendant.
Reversed and remanded for a new trial consistent with this opinion.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred._
MCL 750.77; MSA 28.272 provides:
"Any person who shall in any manner use, arrange, place, devise or distribute any inflammable, combustible or explosive material, liquid or substance, or any device in or about any building or property mentioned in the foregoing sections of this chapter, with intent to wilfully and maliciously set fire to or burn the same, or who aids, counsels, induces, persuades or procures another to do such act or acts, shall, if the property intended to be so burned be personal property of the value of $50.00 or less, be guilty of a misdemeanor. If such property be personal property of the value of more than $50.00, or real property of any value, he shall be guilty of a felony.”
The property in question was an automobile.
When a trial judge rules on the admissibility of prior convictions of witnesses, he or she is now obliged to articulate on the record the factors considered in reaching that decision. MRE 609(a)(2), as amended May 14, 1980. See 408 Mich lxiii (1980). | [
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Per Curiam.
This case requires us to pass upon defense failure to object to the joinder, after presentation of proofs by both sides and before final arguments, of an unrelated felony charge. On appeal the Court of Appeals, sua sponte, determined that such joinder constitutes reversible error. We disagree. In lieu of granting leave to appeal, we reverse the judgment of the Court of Appeals. The case is remanded to determine whether the corpus delicti of the added felony conviction was placed in evidence by the prosecution.
I
On May 3, 1978, complainant Johnnie Rucker was robbed by an armed assailant who fled in a blue Thunderbird. Rucker gave pursuit in his own vehicle, and was able to inform the police of the recently committed robbery when he pulled alongside a cruiser during the chase. The police eventually captured the Thunderbird’s driver when the automobile struck a parked vehicle. Complainant’s belongings were found intact in the Thunderbird.
The driver, defendant James Thompson, was charged with armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2). A third count, receiving and concealing stolen property over the value of $100, MCL 750.535; MSA 28.803, was added upon the prosecutor’s motion at the close of the proofs by both sides, without objection by defense counsel. A Detroit Recorder’s Court jury returned verdicts of guilty on all charges. Defendant was sentenced to serve 20 to 40 years in prison for the armed robbery conviction and a mandatory consecutive two-year term on the felony-firearm conviction. A concurrent sentence of 3 to 5 years in prison was imposed for the receiving and concealing conviction.
The additional felony charge was requested after defendant took the stand to explain his conduct in fleeing from the pursuing police cruiser. He maintained that his attempts to elude the police were motivated by his knowledge that the Thunderbird was a stolen automobile. Defendant claimed, however, that he had obtained the Thunderbird earlier on the day of the robbery from a friend named Dorian Gray. Defendant denied that he had robbed complainant.
Based upon defendant’s admission that he was operating a stolen vehicle, the trial court granted the prosecutor’s unopposed motion to add a count of receiving and concealing stolen property over the value of $100. No direct testimony regarding any of the elements of that offense was either submitted or received into evidence except for the defendant’s statement and a corroborative remark by one of the officers who had arrested defendant at the scene.
The failure to place .the corpus delicti of the receiving and concealing offense into evidence was the thrust of the defendant’s argument in the Court of Appeals. While defendant’s sufficiency challenge was not addressed by a divided Court, the receiving and concealing conviction was held infirm because of improper joinder. 94 Mich App 315; 288 NW2d 421 (1979). The convictions of armed robbery and felony-firearm were affirmed.
Chief Judge Danhof, writing in dissent, argued that the Court of Appeals has consistently declined to grant relief where no objection is made to joinder. Defense counsel’s inaction was apparently a strategic move to induce the jury to convict on the lesser offense in lieu of the robbery and felony-firearm charges.
II
Our task is to determine whether, as held by the Court of Appeals, the trial court erred reversibly in permitting joinder of the unrelated count of receiving and concealing stolen property immediately prior to the final arguments.
The basic rule in this area was enunciated by People v Ormsby, 310 Mich 291, 302-303; 17 NW2d 187 (1945):
" 'The true and only just rule as regards the joinder of counts in an information or indictment seems to be, if the different counts are drawn and used with a view to one and the same transaction, so that one of them, upon the trial, may be found to meet the evidence, the court will not interfere with the proceeding, as such an object is a legitimate one. * * * But when the object and purpose is apparent to prosecute the respondent * * * for separate felonies by means of one information or indictment, the court will not permit it to be done.’ ”
The sketchy evidence in the case does not reveal the time and place of the receiving and concealing offense. However, the Court of Appeals determined that it occurred under altogether separate circumstances which had nothing to do with the armed robbery. Accordingly, the majority granted relief under the Ormsby rule.
A similar factual setting was present in the case of People v Ritchie, 85 Mich App 463; 271 NW2d 276 (1978). The Court of Appeals held in that instance that charges of armed robbery and receiving and concealing a stolen automobile were improperly joined. Restating the rule set forth in People v Tobey, 401 Mich 141, 153; 257 NW2d 537 (1977), that a judge has no discretion to permit the joinder for trial of separate offenses committed at different times unless the offenses are based upon the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, the Court noted that the only fact connecting the two offenses was the defendant’s alleged use of the stolen vehicle in leaving the scene of the robbery. Since there was neither a showing that the defendant had acquired the stolen automobile for use in the robbery, nor establishment of a common scheme connecting the offenses, the Ritchie Court held that joinder was erroneous.
Both our Tobey and Ormsby opinions, however, clearly envisioned a timely motion for severance or other objection to the joinder. We noted in Ormsby that "as [the] claim of misjoinder was not raised during the trial, * * * it cannot be asserted on appeal”. 310 Mich 299. Defense counsel in this case apparently acquiesced in the addition of the receiving and concealing charge; further, neither misjoinder nor ineffective assistance of counsel was at issue on appeal.
Defendant admitted receiving and concealing stolen property on direct examination by his own attorney. The majority and dissenting opinions in the Court of Appeals agreed that counsel’s failure to object to the joinder was designed to induce the jury to believe the defendant’s explanation and return a verdict on the lesser offense.
Where defendant has purposely failed to object to joinder as a trial strategy, we cannot say that the improper joinder is so offensive to the maintenance of a sound judicial system that reversal must result. This Court cannot permit a defendant to reap the benefit of a trial tactic and yet be relieved of its burden on appeal.
Even if counsel’s failure to object to the misjoinder was not a trial tactic, unexplained failures to object to misjoinder of offenses for trial preclude appellate relief.
Ill
We cannot say that the misjoinder of offenses in the case at bar substantially prejudiced the defendant, where counsel deliberately withheld objection to joinder as a trial tactic.
For the above reasons, in lieu of granting leave to appeal, we remand the case to the Court of Appeals to determine whether the corpus delicti of the added receiving and concealing charge was properly placed in evidence by the prosecution. If the Court of Appeals determines that the prosecu tion has met its evidentiary burden, the defendant’s conviction on the added felony charge shall be reinstated. The trial court is affirmed. The judgment of the Court of Appeals is reversed.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred. | [
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Levin, J.
The issue is whether an employer’s or insurer’s right under the workers’ compensation act to be reimbursed out of any tort recovery by an employee from a third party in respect to the same injury which gave rise to the obligation to pay workers’ compensation benefits is modified by the provisions of the no-fault motor vehicle liability act.
We conclude that since the insurer in the instant case seeks reimbursement for payments which substituted for no-fault benefits otherwise payable, there is no right to reimbursement.
We do not agree with Justice Williams’ conclusion that there is "a clear and irreconcilable repugnance” between the no-fault act and the workers’ compensation act and "both acts cannot be given simultaneous effect” and that therefore the no-fault act operates to repeal the reimbursement provisions of the workers’ compensation act in all cases involving motor vehicle accidents. It is possible to give both acts simultaneous literal effect. The workers’ compensation carrier could be permitted reimbursement from "any tort recovery”, whether for economic or non-economic loss, although the employee’s right to proceed in tort is limited by the no-fault act.
Nevertheless, we think it appropriate to inquire whether consideration of the legislative policies and judgments embodied in the provisions of both acts indicates a legislative intent that a workers’ compensation carrier’s reimbursement rights be modified in cases where the no-fault act is also operative.
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Under the workers’ compensation act the employee is entitled to statutory compensation and may also seek to enforce the legal liability of a third party. But, by operation of the no-fault act, that legal liability is limited.
Under the no-fault act he is entitled to no-fault benefits. But, once the liability of the no-fault insurer is determined, that liability is reduced by the amount of workers’ compensation benefits paid or payable because of the injury.
If the legislative decision, set forth in the no- fault act, that no-fault insurers are entitled to reimbursement from third-party tort recoveries only to the extent recovery represents compensation for elements of loss compensated by no-fault benefits is not extended to workers’ compensation benefits which substitute for no-fault benefits, the third-party tort recovery of a person injured in a motor vehicle accident in the course of his employment would be reduced by no-fault benefits paid by the workers’ compensation carrier, while the third-party tort recovery of a person not injured in the course of his employment would not be reduced.
We are persuaded that had the Legislature considered the acts’ application to the case at bar — a motor vehicle accident occurring in the course of employment — it would have explicitly provided that when a workers’ compensation carrier provides benefits which would be payable by the no-fault insurer had the accident not occurred in the scope of employment but are instead payable by the workers’ compensation carrier because of the no-fault act’s mandatory set-off provision, its reimbursement rights are coextensive with those of the no-fault insurer whose liability it replaces and are thus limited to cases where there is tort recovery for basic economic loss.
That conclusion does not, however, compel total nullification of the workers’ compensation carrier’s reimbursement rights in cases involving motor vehicle accidents. When the carrier pays benefits which do not substitute for no-fault benefits, because they exceed no-fault benefits in amount or duration, it should be treated like all other workers’ compensation carriers and be entitled to reimbursement out of any third-party recovery.
Allowing reimbursement for such benefits would work no discrimination against motor vehicle accident victims who happen to be injured in the course or scope of employment because reimbursement is permitted only for benefits which other motor vehicle accident victims do not receive.
I
Queen was injured in a motor vehicle accident in the course of his employment on January 12, 1976. Great American Insurance Company paid him $4,567 in workers’ compensation benefits. Queen claimed benefits from his employer’s no-fault insurer. The no-fault insurer subtracted the amounts paid under the workers’ compensation act from the benefits otherwise owing under the no-fault act.
Queen then sought to recover from the tortfeasors as permitted by § 3135 of the no-fault act. His claim was settled for $18,500. This sum was paid without notice to Great American.
Great American then brought this cause against Queen and the third-party tortfeasors claiming a lien on the settlement proceeds pursuant to § 827 of the workers’ compensation act. The trial judge granted summary judgment in favor of the defendants. The Court of Appeals affirmed per curiam.
II
An employee’s common-law right to proceed in tort against persons other than his employer, or coworkers was not altered by the workers’ compensation act. An employee may sue such persons for all losses normally recoverable in tort. If he is awarded damages, the employer or workers’ compensation carrier is entitled to reimbursement for benefits paid and to a credit against future payments, without regard to whether the recovery is for the same elements of loss compensated by the benefits paid under the statute.
The employee is thus permitted to rest content with a workers’ compensation award or to pursue his tort remedy and reimburse the employer or insurer for any amounts received under the workers’ compensation act. Because he need not repay more than he recovered in tort, the employee in effect recovers under the more generous of the two systems — tort or workers’ compensation — but not both. This was our holding in Pelkey v Elsea Realty & Investment Co.
The workers’ compensation carrier argues that this case is governed by our decision in Pelkey. The circumstances which supported our rationale in Pelkey, however, and which exist in all workers’ compensation reimbursement cases except those involving motor vehicle accidents occurring after the passage of no-fault, do not obtain here. In Pelkey, damages recoverable in tort included compensation for all losses required to be compensated by the workers’ compensation carrier.
Pelkey was involved in a motor vehicle accident in the course of her employment with Elsea Realty. She sustained a compensable disability and received $3,364.60 in workers’ compensation. Pelkey, her husband, and the workers’ compensation carrier jointly settled their claim against the third-party tortfeasor for $10,000. $3,000 was allocated to Pelkey’s husband for loss of consortium; $3,364.60 was allocated to the workers’ compensation carrier as reimbursement and $3,635.40 was allocated to Pelkey for pain and suffering.
After settlement, Pelkey developed psychiatric complications requiring treatment and petitioned for compensation. The WCAB ruled the treatment related to the earlier injury and awarded compensation but determined that the insurer was entitled to a credit equal to Pelkey’s tort recovery less the costs of securing that recovery. Pelkey argued that tort recoveries for pain and suffering were not intended to be subject to an insurer’s lien based on compensation for economic loss.
We concluded that:
"[W]hen the Legislature stated that damages recovered by an employee from a third-party tortfeasor for 'personal injuries or death only’ could be reached by an insurer, the Legislature meant to include damages resulting from pain and suffering.”
We noted that prior to 1952 an injured employee was required to choose between the common-law tort remedy against third parties and the workers’ compensation remedy provided by statute and concluded that "[t]he right to reimbursement is justi fied by the abrogation of the election of remedies requirement”.
The workers’ compensation act provides a right to no-fault wage benefits, medical care, and scheduled benefits for specific losses. Where the person whose negligence caused the compensable disability is neither an employer nor a co-worker, the injured employee is also permitted to sue in tort. In such an action the employee is entitled to recover all damages normally recoverable in tort— wage loss, medical expenses, and pain and suffering. The third party’s liability is not reduced by amounts recovered under the workers’ compensation system.
In most cases, the amounts repaid to the insurer will represent payments from the third party for elements of damage already compensated by the insurer — medical expenses, wage loss, and pain and suffering in the case of an employee receiving scheduled benefits for a specific loss. In such cases the employee is merely reimbursing the insurer out of a double recovery.
Pelkey presented a different factual circumstance. There the tort liability of the third party was settled before the full extent of injury was known and the prediction of economic damages was inaccurate. The settlement awarded reimbursement for economic damages already paid by the workers’ compensation carrier; it did not anticipate that further treatment would be required. The real question in Pelkey was which party should bear the consequences of the recognized risks of the tort system which ascertains damages at the time of trial and does not permit modification thereafter.
In eliminating the requirement that the employee choose between suing the third party in tort and claiming benefits from the employer under the act, and in providing that the insurer is entitled to reimbursement from any tort recovery, the Legislature carried forward the policy of the earlier act that a worker injured by a third party in the course of his émployment should be permitted to recover benefits provided under the act or damages recoverable at common law, but not both. The new provisions made it possible for the employee to recover compensation under whichever scheme provided greater benefits; it was not intended to allow the employee to retain the best of both schemes.
In Pelkey we thus concluded that the insurer was entitled to reimbursement even out of that portion of the tort recovery denominated for pain and suffering. In this manner Pelkey was required to absorb the disadvantages as well as the advantages of her right to pursue a third-party tort recovery.
Pelkey holds that an employee who recovers damages in tort is not entitled to any greater compensation than a non-employee injured under similar circumstances. Thus, upon securing her third-party recovery, Pelkey was required to reimburse the insurer for amounts already paid and to grant it a credit for amounts to be paid in the future. She was left with no less than her total tort recovery since she was not required to reimburse the carrier for any amounts not actually received.
Application of Pelkey to this case would require that to the extent Queen recovers outside the workers’ compensation system he be permitted to retain no further compensation than that received by a motor vehicle accident victim not injured in the course of his employment.
Ill
The no-fault act creates entitlement to statutory benefits and additionally abrogates common-law tort liability for below threshold non-economic loss and, in most cases, economic loss compensated by no-fault benefits.
No-fault benefits consist of medical expenses unlimited in amount and duration and work loss or survivor’s benefits for three years. These compensate purely economic elements of damage. Persons severely injured may sue the third-party tortfeasor for work loss exceeding that compensated by the no-fault carrier, for non-economic loss where injury is severe, and for basic economic loss if the driver is denied tort immunity under the act.
The no-fault insurer’s right to reimbursement out of tort recoveries from third parties is governed by § 3116 of the no-fault act and this Court’s decision in Workman. The right to reimbursement extends only to those atypical cases where tort recovery is permitted for elements of damage compensated by no-fault benefits; there is no right to reimbursement unless there is duplicate recovery.
The no-fault act also provides that in determining the amount owed by a no-fault insurer, "Benefits provided or required to be provided under the laws of any state * * * shall be subtracted from the personal protection insurance benefits otherwise payable for the injury”. In Mathis (see fn 4), we determined that workers’ compensation benefits are required to be set off under this provision.
IV
Had the Legislature intended that a worker injured in a motor vehicle accident receive only the compensation received by other workers incurring similar disabilities in accidents not involving motor vehicles, it could have so provided by excluding persons injured in the course of their employment from the no-fault act. In Mathis, we held that workers’ compensation is not the employee’s exclusive remedy against his employer and that the employer’s no-fault carrier is also liable for benefits under the no-fault act.
The decision to accord workers benefits under the no-fault act was made in the context of their common-law rights being limited under the no-fault act as are the rights of other motor vehicle accident victims. Employees, like all others, are not permitted to sue for below-threshold economic or non-economic damages.
Thus, we are presented with a legislative judgment that persons injured in motor vehicle accidents in the course of their employment should receive the compensation and have the limited right to tort recovery of other motor vehicle accident victims.
Permitting employees to receive full no-fault benefits is one thing, but permitting such recovery in addition to workers’ compensation benefits would be quite another. The Legislature therefore provided that workers’ compensation benefits are to be subtracted from no-fault benefits otherwise payable. The provision which requires this subtraction applies to all benefits paid under state or federal law and expresses a legislative decision to forbid double recovery under government programs and to allocate the cost of providing the minimum level of benefits mandated by the no-fault act as much as possible to other sources. The provision requiring set-off appears to be directed to the allocation of costs between insurance systems and the avoidance of double recovery and does not appear to be intended to provide motor vehicle accident victims injured in the course of their employment with less compensation than motor vehicle accident victims not so injured.
The Legislature provided that no-fault insurers are entitled to reimbursement from third-party tort recoveries only to the extent recovery represents compensation for elements of loss compensated by no-fault benefits. The Legislature’s deci sion to deny reimbursement rights unless there is double recovery expresses a judgment that tort recovery for non-economic loss and excess economic loss should not be reduced by no-fault economic loss benefits. If that decision is not extended to workers’ compensation benefits which substitute for no-fault benefits, the third-party tort recovery of a person injured in a motor vehicle accident in the course of his employment would be reduced by so much of the no-fault benefits "otherwise payable” as are paid by the workers’ compensation carrier, while the third-party tort recovery of a person not injured in the course of his employment would not be reduced.
We are persuaded that the Legislature intended that persons injured in motor vehicle accidents in the course of their employment be entitled to the same compensation received by all other motor vehicle accident victims and that workers’ compensation benefits be subtracted from no-fault benefits to prevent double recovery and to allocate costs to the other benefit systems, and that the Legislature did not intend that the third-party recovery of a person injured in the course of his employment be subject to greater subrogation claims in favor of insurers simply because a portion of the benefits otherwise payable under the allowable expense, work loss, and survivor’s loss sections are paid by a different source pursuant to the section requiring subtraction of benefits provided under state law.
Our decision in Pelkey requires that the employee who is permitted to sue a third party in tort be permitted to receive no more than one who is injured under similar circumstances but not in the course of his employment. It is fully consistent with that holding to conclude that the workers’ compensation carrier’s right to reimbursement for benefits which substitute for no-fault benefits is governed by § 3116 of the no-fault act.
V
Our conclusion is not based on a constitutional right to be made whole or to retain damages recovered in tort unless there has been a double recovery. The constitutionality of the legislative scheme which allows reimbursement of the workers’ compensation carrier for economic benefits from tort recoveries for pain and suffering was upheld in Pelkey and I adhere to the view expressed in my opinion in Workman that such reimbursement schemes are rational and constitutional.
Rather, our conclusion is based on a perception that the Legislature intended the workers’ compensation carrier to substitute for the no-fault insurer to the extent that workers’ compensation benefits substitute for no-fault benefits otherwise payable. Thus, the payment of workers’ compensation benefits which do not substitute for no-fault benefits, because they exceed no-fault benefits in amount or duration, gives rise to a right to reimbursement from third-party tort recoveries in the same manner as the payment of workers’ compensation benefits for non-motor vehicle related injuries.
In this case, the carrier seeks reimbursement for medical treatment which would be compensable under the no-fault act — there is no right to reimbursement for such payments.
Coleman, C.J., and Kavanagh and Fitzgerald, JJ., concurred with Levin, J.
Queen’s claim that the no-fault act repealed the reimbursement provision of the Worker’s Disability Compensation Act is based on a conflict or repugnancy between an earlier and later act.
The insurer points out that the reimbursement provision of the Worker’s Disability Compensation Act was amended and re-enacted by the Legislature in the same session that the no-fault act was enacted. 1972 PA 285, 1972 PA 294.
MCL 418.827; MSA 17.237(827).
MCL 500.3135; MSA 24.13135.
Mathis v Interstate Motor Freight System, 408 Mich 164; 289 NW2d 708 (1980); MCL 500.3109; MSA 24.13109.
"We seek to ascertain and give effect to the intention of the Legislature. Grand Rapids v Crocker, 219 Mich 178, 182 [189 NW 221] (1922). But, as Karl Llewellyn observed, only infrequently 'a legislative intent with some concrete reality can be uncovered in circumstance or legislative history. For the rest, the court’s work is not to ñnd, any more than it is with case law. It is to do, responsibly, fittingly, intelligently, with and within the given frame.’ (Emphasis by author.) Llewellyn, The Common Law Tradition, Deciding Appeals, p 382. Much the same point was made in language quoted approvingly in Wyandotte Savings Bank v State Banking Comm’r, [347 Mich 33], pp 40-41 [78 NW2d 612 (1956)]: '" 'the intention is to be taken or presumed, according to what is consonant to reason and good discretion.’ ” ’ 1 Kent’s Commentaries (14th ed), p 462.” People v McFarlin, 389 Mich 557, 564-565; 208 NW2d 504; 64 ALR3d 1274 (1973).
Here, as in McFarlin, the constructional issue concerns the interrelationship of legislative acts.
MCL 500.3116; MSA 24.13116.
Great American Ins Co v Queen, 86 Mich App 362; 272 NW2d 659 (1978).
Pelkey v Elsea Realty & Investment Co, 394 Mich 485; 232 NW2d 154 (1975).
"The essential purpose of the 1952 amendment to the dual liability provision of the workers’ compensation act [1952 PA 155] was to enable workers who had received no-fault compensation under that act to obtain the benefit of a larger amount recoverable in tort from a third party at fault. It was not intended that the worker would receive both the no-fault compensation and a tort recovery * * *.
"The purpose was to put the worker in as good a position as. a person injured under similar circumstances who is not entitled to workers’ compensation, not to put him in a considerably better position. It was sought to accomplish that purpose in a manner which would tend to reduce the overall cost of workers’ compensation and avoid duplicative recoveries.” Franges v General Motors Corp, 404 Mich 590, 623-624; 274 NW2d 392 (1979) (opinion of Levin, J.) (emphasis in original).
Workman v Detroit Automobile Inter-Insurance Exchange, 404 Mich 477; 274 NW2d 373 (1979).
Section 3H6 of the no-fault act provides in part:
"A subtraction from or reimbursement for personal protection insurance benefits paid or payable under this chapter shall be made only if recovery is realized upon a tort claim arising from an accident occurring outside this state, a tort claim brought within this state against the owner or operator of a motor vehicle with respect to which the security required by section 3101(3) and (4) was not in effect, or a tort claim brought within this state based on intentionally caused harm to persons or property, and shall be made only to the extent that the recovery realized by the claimant is for damages for which the claimant has received or would otherwise be entitled to receive personal protection insurance benefits.” MCL 500.3116(2); MSA 24.13116(2).
MCL 500.3109; MSA 24.13109. | [
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Kavanagh, J.
This case involves the constitutionality of a warrantless search of personal luggage. Minimum constitutional guarantees provide that a search of personal effects must be attended by probable cause and either a warrant or exigent circumstances. The absence of a warrant in this case reduces the focus of our constitutional assessment to the existence vel non of probable cause and exigent circumstances. Conceding, arguendo, the exigent circumstances authorizing the warrantless seizure of the luggage, there were no exigent circumstances authorizing its warrantless search.
The evidence thus obtained should have been suppressed.
On July 26, 1973, narcotics officers of the Tucson, Arizona, Police Department were conducting general surveillance at the Tucson International Airport. Their surveillance consisted of observing people and luggage for possible narcotics activity. At 10:45 p.m. two officers observed defendant as he entered the terminal. The officers testified that defendant appeared nervous and that his general demeanor fit a "profile” which the officers had come to associate with people who traffic in drugs. Other police officers in a private TWA baggage room smelling all the luggage which passed by on a conveyor were told to pay special attention to defendant’s luggage. Two police officers placed their noses along the seams of defendant’s two suitcases as they passed by along the TWA baggage conveyor. Concluding that they smelled marijuana and talcum powder, the officers removed both suitcases from the conveyor.
With the use of tools the officers broke the lock on one suitcase and searched its contents, discovering 14 bricks of marijuana. Two bricks were removed and marked, one being kept by the police officers in Arizona and never offered in evidence and the other replaced in the suitcase. The other suitcase was pried open at a corner revealing its contents of marijuana. The officers did not retain custody of the suitcases but closed, sealed and placed them back on the TWA conveyor for loading into the departing plane. One officer returned to the main concourse to confirm defendant’s destination as Kalamazoo, Michigan.
The Tucson narcotics officers chose not to arrest defendant but rather to relay all of their information to the Kalamazoo Police Department. Defendant was observed at the Kalamazoo airport as he disembarked from a plane approximately six hours later. Kalamazoo police officers observed defendant as he collected his luggage and made his way out of the terminal and into a taxicab. The officers testified that they did not arrest defendant as he approached the taxi because a bus full of children was arriving. The officers waited until the cab left the airport and stopped it as it drove on a nearby road. The defendant was arrested, and his luggage taken out of the taxi and searched immediately to reveal marijuana.
Neither the Tucson police officers nor the Kalamazoo police officers had obtained or even attempted to obtain a search warrant.
On appeal defendant-appellant contends that the trial court erred in not suppressing the marijuana as a product of an invalid search and seizure. Neither search was carried out pursuant to a warrant and defendant argues that once the police seized his luggage, whether in Arizona or in Michigan, they should have retained custody thereof until a warrant was obtained.
The prosecution contends that the trial court was correct in refusing to suppress the marijuana. Appellee argues that there was only one search involved. What occurred in Kalamazoo was not a separate search and seizure, it argues, but only a reassertion of control which had been obtained in Arizona. The initial intrusion in Arizona is argued as justified by probable cause and exigent circumstances. The similarity between the defendant’s demeanor and the drug profile along with the odor of unburned marijuana and the presence of talcum powder are argued as providing probable cause to believe defendant’s luggage contained contraband. The impending departure of defendant’s flight to Kalamazoo is argued as an exigent circumstance. The prosecutor further contends that because the Tucson police relayed their information to the Kalamazoo police the authorities never relinquished custody of defendant’s luggage and thus what occurred in Kalamazoo was not a separate search but merely a continuation of the valid search which began in Arizona.
This argument misses the point.
Whether there was but one seizure or not and whether it was in Arizona or Michigan, the question before us is the propriety of the search of the luggage after its seizure.
The Arizona police could not have searched the luggage once they had it in their custody and control by removing it from the conveyor, because the claimed exigency of mobility had passed upon their seizure of the luggage. United States v Chadwick, 433 US 1; 97 S Ct 2476; 53 L Ed 2d 538 (1977). If it is conceded, arguendo, that their custody continued and invested the Michigan police with authority to maintain that custody, when the Michigan police removed the suitcases from the taxi there was no exigency of mobility or otherwise authorizing a warrantless search in Michigan.
In Arkansas v Sanders, 442 US 753, 763; 99 S Ct 2586; 61 L Ed 2d 235 (1979), the Court observed:
"But as we noted in Chadwick, the exigency of mobility must be assessed at the point immediately before the search — after the police have seized the object to be searched and have it securely within their control. See 433 US, at 13. Once police have seized a suitcase, as they did here, the extent of its mobility is in no way affected by the place from which it was taken.” (Footnote omitted; emphasis added.)
The philosophy behind this holding is set forth in Chadwick where the Court explained its prior holding in Chambers v Maroney, 399 US 42; 90 S Ct 1975; 26 L Ed 2d 419 (1970):
"Respondent’s principal privacy interest in the footlocker was, of course, not in the container itself, which was exposed to public view, but in its contents. A search of the interior was therefore a far greater intrusion into Fourth Amendment values than the impoundment of the footlocker. Though surely a substantial infringement of respondents’ use and possession, the seizure did not diminish respondents’ legitimate expectation that the footlocker’s contents would remain private.
"It was the greatly reduced expectation of privacy in the automobile, coupled with the transportation function of the vehicle, which made the Court in Chambers unwilling to decide whether an immediate search of an automobile, or its seizure and indefinite immobilization, constituted a greater interference with the rights of the owner. This is clearly not the case with locked luggage.” 433 US 1, 13-14, fn 8.
When the police have custody and control over personal luggage a warrantless search cannot be justified on the basis of the exigent circumstance of mobility.
The evidence here should have been suppressed.
Our holding on this point obviates the need for discussion of the other issues regarding asserted failure to produce a res gestae witness.
Reversed.
Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred with Kavanagh, J.
Williams, J. I concur because the Kalamazoo police had sufficient notice to get a warrant.
US Const, Ams IV, XIV; Const 1963, art 1, § 11.
United States v Chadwick, 433 US 1; 97 S Ct 2476; 53 L Ed 2d 538 (1977); People v Crawl, 401 Mich 1; 257 NW2d 86 (1977) (opinion by Levin, J.). | [
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Levin, J.
The fight against pollution of natural resources has in recent times become a cause célebre. Along with the increasing recognition of the importance of this effort, there has developed a feeling of futility when confronted with the overwhelming array of vested interests which are the often adventitious polluters.
In this case a nonprofit conservation association is attempting to eliminate the pollution of White Lake. It is undisputed that both defendants, the city of Whitehall and Whitehall Leather Company, discharge improperly treated municipal and industrial wastes into White Lake.
The plaintiff, White Lake Improvement Association, is a nonprofit membership corporation organized under the laws of this State in 1951. There are approximately 414 members of the association, many of whom own land bordering White Lake. The association itself owns no land. The stated purpose of the association is to prevent the pollution of White Lake, to promote cleanliness and good sanitary conditions around the lake and the public welfare of the area.
The complaint seeks the abatement of the nuisance caused by the materials the defendants dump and injunctive relief. The trial judge granted accelerated judgments dismissing the action on the ground that the association had no standing to complain. He also ruled that the Water Resources Commission Act provides the exclusive remedy against municipalities. This appeal presents the issue of the scope of the association’s remedies to prevent the continued eutrophication of White Lake.
The Water Resources Commission Act contains a comprehensive procedural and substantive framework for the elimination of water pollution. Originally enacted in 1929 and frequently amended, the act underscores the public policy of this State expressed in the Constitution of 1963, art 4, § 52:
“The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.”
On October 16, 1968 (subsequent to the filing of the complaint in this action on June 29, 1967 and the final judgment on February 20, 1968), the water resources commission entered into an agreement with the city of Whitehall which, by stipulation of the parties, is part of the record on appeal. The city agreed to complete by October 1, 1972 a sewage treatment facility which fulfills specifications in the agreement. On December 5, 1968 a similar agreement was entered into between the commission and Whitehall Leather Company; the completion date is December 1,1971.
The association suggests that the efforts of the water resources commission have been futile due to understaffed offices, insufficient funds and political pressures. Its brief filed with our Court asserts:
“No citizen of Michigan today can feel very secure against the devastating effects of water pollution by si imply reading Act 245 and kidding bimself into believing that ‘tbe law’ as stated in tbe Act will somehow cure the problem. It hasn’t cured the problem — and we’ve had the law since 1929.”
The association says that only in the courts can it obtain meaningful relief. Further, it asks us to overrule the universally accepted doctrine that only one who suffers harm different in kind from that suffered by the public generally may maintain an action for the abatement of a public nuisance. "While we recognize that the standing of nonprofit corporations to challenge proposed action of an administrative agency has been recognized, no case has been cited where a court has, even for a clearly publicly motivated group, made an exception to the “different in kind” standing requirement which for so long has been a feature of the law of public nuisance. Be that as it may, there is no need to address ourselves to this sweeping claim of the plaintiff association in order to decide this case.
For reasons which we will now relate, we have concluded that the association had the necessary standing to commence this action to abate a private nuisance and that the act does not provide an exclusive remedy. We, nevertheless, affirm the judgment dismissing the complaint because we have also concluded that the defendants are correct in their contention that primary jurisdiction of this controversy is now in the commission.
I.
The Association Has Standing To Maintain This Action
Although we affirm the trial judge’s dismissal of the complaint, we think that the plaintiff association is entitled to have its right to maintain this action clarified. The doctrine of primary jurisdiction does not preclude civil litigation; it merely suspends court action. The association may be entirely justified in proceeding with this litigation after it pursues its administrative remedy before the water resources commission.
“The doctrine of primary jurisdiction * * * governs only the question whether court or agency will initially decide a particular issue, not the question whether court or agency will finally decide the issue.” (Emphasis by author.) 3 Davis, Administrative Law Treatise, § 19.01, p 3.
“Court jurisdiction is not thereby ousted, but only postponed.” United States v. The Philadelphia National Bank (1963), 374 US 321, 353 (83 S Ct 1715, 10 L Ed 2d 915).
A nuisance may at the same time be both a public and private nuisance. Thus, without deciding whether the pollution of White Lake constitutes a public nuisance and whether the plaintiff association has standing to complain of a public nuisance, if the pollution of White Lake constitutes a private nuisance the association can maintain this action if it has the necessary standing to commence an action for the abatement of a private nuisance.
Where a private nuisance affects water, a riparian landowner may commence an action for its abatement. True, the plaintiff association owns no land, but its sole purpose is to represent the interest of its members, many of whom are riparian landowners, in preventing the pollution of White Lake.
No constructive purpose would be served by requiring the members of the plaintiff association who are riparian owners to maintain this action individally and thereby require that they seek in some other fashion financial and other support from the other affected landowners. Additionally, allowing the landowners to associate together for this purpose may avoid a multiplicity of suits; the difficulties that are likely to be encountered where there are a large number of plaintiffs are all too familiar to anyone who has had experience in such litigation. The most expedient way for the riparian owners to obtain a determination on the merits is to allow them to combine and join together for this purpose with others of a like interest under a single banner both before and at the time of suit: “The only practical judicial policy when people pool their capital, their interests or their activities under a name and form that will identify collective interests, often is to permit the association or corporation in a single case to vindicate the interests of all.”
The purpose of the rules of law which limit the persons who may maintain an action for the abatement of a nuisance is similar to a purpose of standing requirements generally, namely, to insure that only those who have a substantial interest will be allowed to come into court to complain.
In Morse v. Liquor Control Commission (1947), 319 Mich 52, the plaintiffs, who were members of churches alleged to be within 500 feet of the defendant liquor licensee, asserted that the sale of liquor by the licensee would constitute both a public and private nuisance. The plaintiffs brought the action in their own names, not on behalf of the churches to which they belonged. The Michigan Supreme Court discussed the law of public and private nuisance and concluded that the plaintiffs were proper parties plaintiff. In reaching that decision the Court necessarily ignored the fact that the plaintiffs did not themselves own property located within 500 feet of the churches.
In other cases as well it has been recognized that a nonprofit corporation may have standing to maintain an action to vindicate the interests of its members.
Having in mind the function of the standing requirement, we are satisfied that the plaintiff association has an adequate interest to entitle it to maintain this action to the extent it seeks abatement of a private nuisance.
II.
The Water Resources Commission Act Does Not Provide An Exclusive Remedy
The trial judge relied on section 6(b) of the act in holding that it provides the exclusive remedy against a municipality. Section 6(b) is concerned, however, with the discharge of raw sewage of human origin from land occupied by the landowner himself rather than with the discharge of sewage by a municipality. Section 6(b) seeks to confine the remedy against the city for “permitting, allowing or suffering” land occupiers to discharge such sewage into the waters. It does not purport to relieve the municipality from its common law liability for its own actions in discharging sewage. In this case the complaint against the defendant city does not charge it with permitting, allowing or suffering others to discharge raw sewage of human origin into the waters but rather that the city itself is discharging into White Lake inadequately treated sewage of various origins.
III.
The Association Has A Remedy Before The Water Resources Commission
Section 7 the act provides:
“Whenever in the opinion of the commission any person shall violate or is about to violate the provisions of this act, or fails to control the polluting content or substance discharged or to be discharged into any waters of the State, the commission may notify the alleged offender of such determination by the commission.”
Section 7 then goes on to provide as to the form of the notice of a hearing, that “At such hearing any interested party may appear, present witnesses and submit evidence,” and that the final order of determination of the commission shall be conclusive unless reviewed in accordance with the provisions of the administrative procedure act.
Section 8 of the act provides that “any person [who] shall feel himself aggrieved by the restriction of polluting content, waste or pollution, or any other order of the commission” has the right to petition the water resources commission for a public hearing with ultimate review through the courts under the administrative procedure act.
For purposes of §§ 7 and 8, agreements entered into by the water resources commission, like those between the commission and the defendants, which agreements are about to be acted upon by the defendants and serve as the stimulus for the expenditure of great sums of money, agreements which, the defendants assert, make unnecessary the con tinuanee of this litigation, must be treated as “orders” of the commission capable of being attacked by those interested or aggrieved. This is not to say that such agreements may not be entered into, but rather that the public accountability contemplated by the procedures set forth in § § 7 and 8 of this act cannot be avoided by the use of an “agreement” as a substitute for the statutory hearing resulting in an order provided for in the act.
Those interested or aggrieved who have not consented to the provisions of these agreements are not bound by them. Section 7 contemplates that orders of the commission are conclusive only as to those who have had an opportunity to be present at a hearing. The same analysis is applicable to an agreement which functions as an order. Since the hearing contemplated by the statute (“at which any interested party may appear, present witnesses and submit evidence”) has never been held, the association may yet challenge the sufficiency of the provisions of these agreements. As a practical matter, allowing the association to attack the agreements administratively at this date should not unduly impede the defendants in fulfilling their undertakings. Construction of the sewage treatment facilities is not required to be commenced until December 1,1970 (as to the leather company) and until August 1, 1971 (as to the city).
We agree with the defendant city that the association is an “aggrieved person” capable of challenging a commission order under § 8; it is like wise “interested” under § 7. The word “person” is defined in § ll “to include any municipality, industry, public or private corporation, co-partnership, firm or any other entity whatsoever.” The term “aggrieved” has been interpreted in similar statutes in other jurisdictions to include nonprofit conservation and other eleemosynary associations.
In Scenic Hudson Preservation Conference v. Federal Power Commission (CA 2, 1965), 354 F2d 608, 616, certiorari denied 384 US 941 (86 S Ct 1462, 16 L Ed 2d 540), the United States Court of Appeals for the Second Circuit declared:
“In order to insure that the Federal Power Commission will adequately protect the public interest in the aesthetic, conservational, and recreational aspects of power development, those who by their activities and conduct have exhibited a special interest in such areas, must be held to be included in the class of ‘aggrieved’ parties under [the act].”
The court rejected the argument that allowing intervention by public spirited organizations will encourage “literally thousands” to intervene. It observed, in language also pertinent to the standing of the plaintiff association to seek abatement of a nuisance in civil litigation (see part I, supra) (p 617), “No such horrendous possibilities exist. Our experience with public actions confirms the view that the expense and vexation of legal proceedings is not lightly undertaken.”
IY.
Primary Jurisdiction Is Now In The Commission
Simply to find that the plaintiff has an avenue of review under the Water Resources Commission Act does not conclude our analysis of this case. Whether the association should be compelled to seek redress through the administrative channel before it is allowed to continue this action poses a different and difficult issue.
It is well established that a proper party may sue for damages or seek injunctive relief to abate a nuisance such as water pollution. Both before and after the enactment of the Water Resources Commission Act, such actions have been brought. The act itself contemplates that existing common law remedies are not abolished. But it is in just such a case, one of concurrent jurisdiction of the courts (to enjoin a nuisance) and of an administrative agency (to regulate and prohibit pollution) that the doctrine of primary jurisdiction operates.
The primary jurisdiction doctrine has been explained as follows:
“In 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.” Far East Conference v. United States (1952), 342 US 570, 574, 575 (72 S Ct 492, 96 L Ed 576).
In Ellison v. Rayonier Incorporated (D Wash, 1957), 156 F Supp 214, the plaintiffs (owners of oyster beds) sought to obtain damages for water pollution. The court held that the Washington State Water Pollution Control Commission had primary jurisdiction (p 219) :
“Important private and public interests in a wide variety of particulars are in seeming conflict and require consideration of ultimate State public policy in determining the extent and character of water pollution to be permitted in general and specific cases. Such determination involves extremely technical, complicated and scientific problems which reasonably might be thought more suitable for resolution by administrative procedures than by the trial of particular damage claims the varying decisions of which provide no specific standards. Many factors of importance to the industrial development of the State could not or might not be considered in a private damage action based on water pollution.”
To rule on the plaintiff’s cause of action would require a court to duplicate the efforts of the water resources commission and perhaps to contradict the agreements which, we have observed, function as orders. In order to achieve uniformity and consistency in this vital area, we think it would be wise for the courts to refrain from ruling on the merits of the association’s claims at this time.
“The principal reason behind the doctrine of primary jurisdiction is not and never has been the idea that ‘administrative expertise’ requires a transfer of power from courts to agencies, although the idea of administrative expertise does to some extent contribute to the doctrine. The principal reason behind the doctrine is recognition of the need for orderly and sensible coordination of the work of agencies and of courts. Whether the agency happens to be expert or not, a court should not act upon subject matter that is peculiarly within the agency’s specialized field without taking into account what the agency has to offer, for otherwise parties who are subject to the agency’s continuous regulation may become the victims of uncoordinated and conflicting requirements.” 3 Davis, Administrative Law Treatise, § 19.01, p 5. (Emphasis supplied.)
The association may administratively challenge the water resources commission’s orders and then, if dissatisfied with the commission’s disposition of its claims, it can obtain judicial review through the administrative procedure act. It may then again initiate an action in equity to abate the nuisance if it still feels itself aggrieved and entitled to equitable relief. Since plaintiffs do not seek a money judgment and there does not appear to be a statute of limitations problem, there is no need to keep the present action pending in the interim.
In holding that the association should pursue its administrative remedy before the courts should further entertain an action seeking the formulation of an equitable decree, we have recognized and given consideration to the fact that at the time this action was commenced the commission had not acted, that the agreements between the commission and the defendants city and leather company had not been en terecl into and tlie fact that it is uncertain whether, had the association then sought relief before the commission, the commission would have entertained a petition which soug’ht the initation of a proceeding by the commission for the elimination of the pollution of White Lake.
In another case it might appear that immediate equitable intervention is necessary, that an administrative proceeding would not give the plaintiff the relief to which he is entitled. Or if the water resources commission refuses to act on a plaintiff’s petition seeking relief, or if, before the applicability of the primary jurisdiction doctrine is asserted, judicial proceedings have advanced to a point where it would be unfair to remit the plaintiff to another and duplicative proceeding, a court of equity might well conclude that the proper administration of justice requires it to retain jurisdiction and itself to decide the matter. There are no absolutes, each case must be decided on its own facts.
In this case the defendants have not answered; their motions for accelerated judgment were granted. It does not appear that any pretrial preparation has occurred. The plaintiffs will not be re quired to repeat before the administrative agency presentations already made before the circuit court.
While the plaintiffs claim that the pollution of the lake is increasing, it does not appear that this is a case which requires immediate equitable intervention in order to preserve the status quo. Without attempting to minimize the seriousness of the situation as it affects the members of the plaintiff association, ihe conditions of which they complain have existed for a considerable period of time. Neither defendant began its pollution of White Lake just before this lawsuit was commenced.
It has not been shown that effective relief cannot be obtained in a proceeding before the water resources commission.
Considerable sums may have already been expanded on engineering and other like work in connection with the negotiation and implementation of the agreements between the commission and the defendants. If this lawsuit were allowed to continue, the wisdom of these agreements, their adequacy would, no doubt, be an issue in the lawsuit; the sums of money expended by the defendants in connection therewith would be an equity to be considered in determining the relief, if any, to which the association is entitled.
For even if it were to be determined in this lawsuit that the pollution of White Lake by the defendants is unreasonable, an injunction prohibiting continued pollution of White Lake would not issue as a matter of course. In Monroe Carp Pond Co. v. River Raisin Paper Co. (1927), 240 Mich 279, it was found that the use made of the stream by the defendants was not reasonable ; nevertheless, an injunction was denied and the relief granted was limited to money damages. The plaintiff in that case was in the business of storing and feeding carp. The defendants were the city of Monroe and its principal industries. The court denied an injunction stating that it was apparent that the granting of an injunction would work (p 289) “a great injury, entirely disproportionate to that sustained by plaintiff, upon the defendants, and it would also seriously affect the prosperity of the city.”
We note the comprehensive powers of the water resources commission to regulate and prohibit pollution. The plaintiff association does not seek money damages; it expressly eschews a money recovery. It seeks only equitable relief and it may well obtain from the commission the relief which it seeks in this action and, perhaps, more complete and effective relief.
Affirmed. No costs.
All concurred.
In particular, water pollution has been the subject of growing study and concern. There has been ample documentation of the dimensions of the water pollution crisis. Official reports describing the pollution of Michigan waters are collected in Michigan’s Water Problems (Humphrys ed), a 1967 publication of the Department of Resource Development, in cooperation with the Institute of Water Research, Michigan State University.
The threatened aquaeide of the Great Lakes is described in Proceedings, the Pollution of Lake Erie and its Tributaries, U. S. Department of the Interior, Federal Water Control Administration (1966); Proceedings, Pollution of Lake Michigan and its Tributary Basin, U. S. Department of the Interior, Federal Water Control Administration (1968).
Growing national interest in the pollution problem is reflected in Senate hearings which have increasingly foeused on the serious consequences of continued governmental inaction. See Hearings, Subcommittee on Air and Water Pollution, Committee on Public Works, United States Senate 89tli, 90th, and 91st Congress (1965-1969). See, also, this Subcommittee’s Hearings, Thermal Pollution, 90th Congress, 2d Session (1969).
See, for example, Galbraith, Polipollutionists: Movement for the Survival of Pollution, 217 Atlantic Monthly 52 (1967) ; Krease, Why Water Pollution is Economically Unavoidable, 5 Trans-Action 31 (1968).
Of those members who responded to interrogatories put by the defendants over 50 claimed they owned land fronting on White Lake.
MCLA § 323.1, et seq. (Stat Ann 1969 Eev § 3.521, et seq.)
See, generally, Joseph G. Molner, M. D., Prevention of Pollution of Michigan Water Eesources, 37 U of Detroit L J 144 (1959); N. William Hines, Nor Any Drop to Drink: Publie Begulation of Water Quality, 52 Iowa L Eev 186, 201 (1966).
PA 1929, No 245; PA 1941, No 131; PA 1947, No 216; PA 1949, No 117; PA 1965, Nos 328, 405; PA 1968, No 167.
A general description of attempts to restrain pollution through the courts in various jurisdictions is found in Stein, Problems and Programs in Water Pollution, 2 National Resources Journal 388 (1962). See, also, footnote 37 and accompanying text.
See Harper and James, The Law of Torts, §1.23, p 64; 39 Am Jur, Nuisances, §124, pp 379, 380; Morse v. Liquor Control Commission (1947), 319 Mich 52, 58, 59.
See, also, N. William Hines, Nor Any Drop to Drink: Publie Regulation of Water Quality, 52 Iowa L Bev 186, 196, et seq. (1966).
In this connection see, however, Sax, The Public Trust Doctrine in National Resource Law: Effective Judicial Intervention, 68 Mich L Rev 471, 485 (1970), which shows that private citizens have in a number of cases been allowed to maintain actions challenging appropriations of the public domain (e.g., park lands, the foreshore, and the waters of the foreshore and the larger lakes, rivers and streams). See Township of Grosse Ile v. Dunbar & Sullivan Dredging Co. (1969), 15 Mich App 556, 566: “The title of a riparian owner in the bed of a navigable river is subject to a public trust for the preservation of the publie right of navigation, fishing, and other activities.”
See footnote 23 and accompanying text.
Board of Water Commissioners of Detroit v. City of Detroit (1898), 117 Mich 458, 461, 462.
See Kestatement, Torts, 2d, tentative draft 15, § 821B, eomment %•
Dohany v. City of Birmingham (1942), 301 Mich 30, 41, 42.
In the eastern and midwestern parts of the United States, where water is comparatively plentiful, water law has developed in terms of the rights of riparian owners. (In the western States, where water is searce, the doctrine of prior appropriation, i.e., first-in-time-first-in-right, largely governs.)
Each riparian owner is entitled to the “reasonable enjoyment of the common right.” Dumont v. Kellogg (1874), 29 Mich 420, 425. This rule also governs the use of those who acquire access to the water by easement, license and right-of-way. Thompson v. Ens (1967), 379 Mich 667, 686, 687 (such rights of use can be created, even though riparian rights eannot be conveyed or assigned). The question of what constitutes a reasonable use has been the subject of much litigation; see Hoover v. Crane (1960), 362 Mich 36, and cases there cited. See, also, Phillips v. Village of Armada (1908), 155 Mich 260, 262, 263.
Joint Anti-Fascist Refugee Committee v. McGrath (1951), 341 US 123, 187 (71 S Ct 624, 95 L Ed 817) (per Jackson, J.). This statement has been cited with approval in later opinions of the court. See NAACP v. Patterson (1958), 357 US 449, 459 (78 S Ct 1163, 2 L Ed 2d 1488) ; Bantam Books, Inc. v. Sullivan (1963), 372 US 58, 64 (83 S Ct 631, 9 L Ed 2d 584).
Cf. Flast v. Cohen (1968), 392 US 83, 98-100 (88 S Ct 1942, 20 L Ed 2d 947), where the United States Supreme Court observed:
“Standing is an aspect of justiciability and, as such, the problem of standing is surrounded by the same complexities and vagaries that inhere in justiciability. Standing has been called one of ‘the most amorphous [concepts] in the entire domain of public law.7 Some of the complexities peculiar to standing problems result because standing ‘serves, on occasion, as a shorthand expression for all the various elements of justiciability.7 In addition, there are at work in the standing doctrine the many subtle pressures whieh tend to cause policy considerations to blend into constitutional limitations. * * *
“The ‘gist of the question of standing7 is whether the party seeking relief has ‘alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.7 Baker v. Carr (1962), 369 US 186, 204 (82 S Ct 691, 7 L Ed 2d 663). In other words, when standing is placed in issue in a ease, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable.77
Similarly see Office of Communication of the United Church of Christ v. Federal Communications Commission (1966), 123 US App DC 328 (359 E2d 994, 1000, et seq.).
NAACP v. Button (1963), 371 US 415, 428 (83 S Ct 328, 9 L Ed 2d 405); Louisiana v. NAACP (1961), 366 US 293, 296 (81 S Ct 1333, 6 L Ed 2d 301). Smith v. Board of Education of Morrilton School District No 32 (CA 8, 1966), 365 F2d 770, 771. Cf. Baltimore & P. R. Co. v. Fifth Baptist Church (1883), 108 US 317, 329, 330 (2 S Ct 719, 27 L Ed 739); Environmental Defense Fund, Inc. v. Director of Agriculture Department (1968), 11 Mich App 693.
“The discharge of any raw sewage of human origin, directly or indirectly into any of the waters of the state shall he con sidered prima faoie evidence of the violation of section 6(a) of this act unless said discharge shall have been permitted by any order, rule or regulation of the commission. Any city, village or township which permits, allows or suffers the discharge of such raw sewage of human origin into any of the waters of the state by any of its inhabitants or persons occupying lands from which said raw sewage originates, shall be subject only to the remedies provided for in section 7 of this act.” MCLA § 323.6(b) (Stat Ann 1969 Rev § 3.526(b)).
Adoption of the construction placed on the act by the defendant eity would raise a serious issue as to the constitutionality of section 6(b) as that construction, for all practical purposes, eliminates altogether the judicial remedy for injury caused by municipally discharged sewage. Clearly a person who can show damage to a property interest caused by such sewage has a right to hold someone liable for his loss. Of. Dohany v. City of Birmingham, supra. Under the construction which we place on the act he may sue the land oceupier, who presumably is identifiable, in the. hind of ease where the remedy against the eity has been eliminated and the eity itself where the user of the eity sewer is not identifiable and the city is discharging the waste in the water.
mola § 323.7 (Stat Ann 1969 Rev § 3.527).
MCLA §24.101 et seq. (Stat Ann 1969 Rev § 3.560[21.1] et seq.).
MCLA § 323.8 (Stat Ann 1969 Rev § 3.528).
See Dation v. Ford Motor Co. (1946), 314 Mich 152, 167; Trellsite Foundry & Stamping Company v. Enterprise Foundry (1961), 365 Mich 209, 217, concerning the need for a hearing and notiee if the administrative order is to affect private property rights.
If a hearing had been scheduled, persons duly notified of the hearing would, of course, have had to act timely to protect their rights under the act.
MCLA § 323.11 (Stat Ann 1969 Rev § 3.531).
Office of Communication of the United Church of Christ v. Federal Communications Commission (1966), 123 US App DC 328 (359 F2d 994, 1000); Associated Industries of New York State v. Ickes (CA 2, 1943), 134 E2d 694; Powelton Civic Home Owners Association v. Department of Housing and Urban Development (ED Pa, 1968), 284 E Snpp 809, 820; Road Review League v. Town of Bedford (SD NY, 1967), 270 E Snpp 650, 660; International Chemical Workers Union v. Planters Manufacturing Co. (ND Miss, 1966), 259 F Supp 365; Reade v. Ewing (CA 2, 1953), 205 F2d 630. Cf. Nashville I-40 Steering Committee v. Ellington (CA 6, 1967), 387 F2d 179, 182. See, generally, Jaffe, Standing to Secure Judicial Review; Publie Actions, 74 Harv L Rev 1265 (1961); Private Actions, 75 Harv L Rev 255 (1961).
Similarly, see Office of Communication of the United Church of Christ v. Federal Communications Commission (CADC, 1969) 425 F2d 543, n 2.
The defendant Whitehall Leather Company maltes a similar assertion in its brief in support of its contention that the commission has primary jurisdiction.
Dohany v. City of Birmingham, supra; Attorney General, ex rel. Township of Wyoming, v. City of Grand Rapids (1913), 175 Mich 503. See, also, Gundy v. Village of Merrill (1930), 250 Mich 416.
“Any violation of any provision of section 6 [unlawful discharge into waters] shall be pri/ma facie evidence of the existence of a public nuisance and in addition to the remedies provided for in this act may be abated according to law in an action brought by the attorney general in a eourt of competent jurisdiction.” Section 6(d) (MCLA § 323.6(d) [Stat Ann 1969 Bev § 3.526(d)]). See Attorney General, ex rel. Township of Wyoming, v. City of Grand Rapids (1913), 175 Mich 503, 533.
“This act shall not be construed as repealing any of the provisions of the law governing the pollution of lakes and streams, but shall be held and construed as ancillary to and supplementing the same and in addition to the laws now in force, except as the same may be in direct conflict herewith.” Section 12 (MCLA § 323.12 [Stat Ann 1969 Bev § 3.532]).
The attorney general has ruled that the Water Resources Commission does not have exclusive jurisdiction to regulate and prohibit pollution:
“The right to control pollution of the waters of the state are vested in the first instance in the aggrieved individual citizen who may be affected by said pollution, either by an objectionable nuisance created, the material effect upon his lands, or the danger to his stock, himself, or his family, created by such pollution. The instances in which the courts have upheld this doctrine are too numerous to need citation.” OAG 1949, No 1056, p 3.
The Pennsylvania Supreme Court interpreted its pollution statute to supplement existing common law remedies in Commonwealth, ex rel. Shumaker, v. New York & P. R. Co. (1951), 367 Pa 40 (79 A2d 439); similarly, see Urie v. Franconia Paper Corp. (1966), 107 NH 131 (218 A2d 360) ; People v. City of Los Angeles (1958), 160 Cal App 2d 494 (325 P2d 639, 645).
See, generally, Louis L. Jaffe, Primary Jurisdiction (1964), 77 Harv L Rev 1037. Israel Convisser, Primary Jurisdiction: The Rule and its Rationalizations (1956), 65 Vale L J 315; 3 Davis, Administrative Law Treatise, ch. 19.
Similarly, see Schofield v. Material Transit, Inc. (1960), 42 Del Ch 144 (206 A2d 100), where the primary jurisdiction doctrine was held to require “first resort” to the Air Pollution Authority of the State of Delaware; see, also, Dunlap Lake Property Owners Assoc. Inc. v. City of Edwardsville (1959), 22 Ill App 2d 95 (159 NE2d 4, 6),
Cf. Grevers v. Michigan Bell Telephone Company (1969), 18 Mich. App 422,
In this connection we note that the act in terms does not authorize a person injured by pollution to initiate a proceeding before the commission, that the commission alone can initiate formal proceedings (see § 7 discussed in main text at footnote 17). Nevertheless, it appears that the commission does aet on citizen complaints. See State administrative eode, p 2102 (1954).
We appreciate that the resources of the commission available for investigation are limited, that every eomplaint filed, formally 'or informally, cannot be acted upon with the expedition that it'probably deserves. We also can understand that some complaints are, in the judgment of the commission’s staff not worth pursuing, either intrinsically or, again, having in mind the limited resources of the commission. With that in mind, we suspect that further legislation is probably of less importance than additional appropriations.
Nevertheless, it must be observed that if a citizen’s eomplaint is not acted upon expeditiously and he chooses to pursue a judicial remedy, that it might be totally unfair to remit him to an administrative remedy just because the commission then decides either at the instance of the defendant in the lawsuit or on its own motion to initiate a proceeding under § 7 of the aet.
In the absence of an administrative remedy, a court could not refuse to exercise jurisdiction. See Dohany v. City of Birmingham, supra; Urie v. Franconia Paper Corp. (1966), 107 NH 131 (218 A2d 360) ; similarly see People v. City of Los Angeles (1958), 160 Cal App 2d 494 (325 P2d 639, 645), where the court allowed maintenance of a nuisance action to abate pollution; under the relevant statute there was no way for the plaintiff to initiate proceedings before the administrative board.
In this ease the commission entered into the agreements with the city and the leather company after the plaintiffs’ eomplaint had been dismissed. It does not appear, therefore, that the commission’s action was taken in order to forestall this litigation.
Cf. Steele v. Clinton Electric Light Power Co. (1937), 123 Conn 180 (193 A 613, 616) ; Carter v. Suburban Water Co. (1917), 131 Md 91 (101 A 771, 772).
See Stanton v. Trustees of St. Joseph’s College (1967), 233 Me 718 (233 A2d 718, 724).
Indeed, to the extent that allocation of dear water among"competing users is an economic problem, the optimal distribution;'yf this resource is discouraged by legal obstacles whieh distort the bid ding process between recreational and industrial users. We recognize that refusal of a eourt to entertain a ease by invoking the concept of primary jurisdiction may raise the cost to the citizen of challenging water pollution, and that adjustment of competing public and private claims will be delayed or prevented altogether if it becomes significantly less costly for industry to pollute waters than for private citizens to restrain their pollution. For an analysis of this problem of “transaction eosts” see Coase, The Problem of Social Cost, 3 Journal of Law and Economics 1 (1960). See, also, Hirshleifer, Water Supply: Economies, Technology & Policy (1960).
See footnote 30.
Cf. Arnold v. Ellis (1966), 5 Mich App 101, 110; see, also, Interstate Milk Handlers v. Hoffman (1955), 34 NJ Super 356 (112 A2d 574, 577).
The standing and primary jurisdiction concepts have this in common: both assume that the plaintiff may have a meritorious claim and yet, for largely institutional reasons, a judge who applies one of these concepts in a particular case refuses to decide the issues on their merits. Since these concepts are largely self-imposed limitations, their application in particular eases should be characterized by great flexibility. They need not be invoked willy-nilly — merely because another judge declined in another seemingly similar ease to entertain an action.
Just as a judge may, as a matter of judgment, decide that a particular plaintiff has no standing or that another tribunal should first hear the case, another judge may decide to entertain a case whieh appears to be similar to the case declined if in the case at hand the plaintiff’s interest appears to that judge to be substantial and he concludes, as a matter of judgment, that he ought to exercise the court’s power without delay, that alternative nonjudicial remedies are inadequate, e.g., unclear, uncertain, cumbersome or likely to be unduly protracted.
See Stanton v. Trustees of St. Joseph’s College, supra; Bernard Schwartz, Primary Administrative Jurisdiction and the Exhaustion of Litigants, 41 Georgetown L J 495 (1953) ; of. Louis B. Schwartz, Legal Restriction of Competition in the Regulated Industries: An Abdication of Judicial Responsibility, 67 Harv L Rev 436, 464, et seq. (1954).
See footnote 11.
But see, also, People, ex rel. Stream Control Commission, v. City of Port Huron (1943), 305 Mich 153, where the Court stated the “doctrine of ‘comparative injury’ should be confined to thoso situations where the plaintiff can be substantially compensated.”
See, also, Whalen v. Union Bag & Paper Co. (1913), 208 NY 1 (101 NE 805), holding that an injunction must be granted a lower riparian owner (a farmer) who otherwise would continue to be substantially affected by the defendant’s (a pulp mill) pollution of a stream without regard to the comparative injury; and Pennsylvania R. Co. v. Sagamore Coal Co. (1924), 281 Pa 233 (126 A 386), so holding in a case where the injunction was sought by a public water supply company. The comparative injury doctrine is recognized in York v. Stallings (1959), 217 Orc 13 (341 P2d 529), and Gilpin v. Jacob Ellis Realties (1957), 47 NJ Super 26 (135 A2d 204). Contrast Hark v. Mountain Fork Lumber Co. (1945), 127 W Va 586 (34 SE2d 348).
See, generally, Hines, Nor Any Drop to Drink: Public Regulation of Water Quality, 52 Iowa L Rev 186, 200 (1966). | [
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-107,
-97,
84,
-46,
103,
120,
-18,
-60,
95,
-22,
3,
-122,
-108,
-77,
79,
-36,
-114,
21,
-17,
-93,
34,
85,
-60,
-24,
94,
103,
48,
30,
-50,
-112
] |
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