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Moore, J.
May 3, 1923, plaintiff filed a bill of complaint charging defendant with extreme cruelty. The defendant answered. Some witnesses were sworn and the bill of complaint was dismissed September 22, 1923. On June 13, 1924, plaintiff filed the bill of complaint in the instant case, charging cruelty and failure to support, and asking for a separate maintenance. The defendant filed an answer in which he said:
“Defendant denies that he is coarse and animal like; denies that plaintiff’s revulsion is due to any severe or brutal disposition on his part or that he has rendered the marriage relation unsustainable. Defendant denies all the other allegations in said paragraph, except that he admits that he accused her of infidelity and claims that plaintiff began divorce proceedings in this court about a year ago and defendant insisted on his allegations and plaintiff was denied relief and defendant hereby makes reference to said case in the pleadings therein and the evidence given therein and begs leave to produce transcript thereof and make reference thereto. * * *
“Answering paragraph six, defendant admits the allegations therein but denies that plaintiff is entitled to the relief sought or to any relief whatsoever and alleges in the year 1922 plaintiff brought a suit for divorce in this court and was denied any relief whatsoever and alleges that defendant is willing to resume the marital relations at any time; that there is no reason for their estrangement except another man that has come into their lives who stands between defendant and the plaintiff.”
This is the only reference made in the answer to the prior litigation. Upon the trial the plaintiff testified without objection to the effect that upon the first hearing she was unable to produce her witnesses, and that they were not produced. A colloquy between counsel and the trial judge indicated that the judge was of the opinion that he could not go back of the decree in the former case, but nevertheless counsel for plaintiff was permitted to put in her testimony and produced several witnesses not produced on the first hearing.
Fred Faber was called as an adverse witness, and testified in part as follows:
“My wife and I have been separated for a year and a half. I have not paid her any money since we were in court last year; then I was paying $7 a week. I have not paid anything on the house and lot since that time. I sent her $5 in January, 1924. I know she was washing for a living. That is the only money I offered her. In the meantime I have had the use of the house and furniture. I paid the taxes and interest on the house and contract. There is $1,085 due on the contract. My wife worked and kept boarders. Since the boarders left she kept her earnings separate. My wife may have bought $600 worth of furniture. I don’t know the value. It was bought with the money that she saved. I earn $25 a week. Have $50 in my pocket. I sent $515 to the old country about four months ago. * * * When I sent my wife $5 it was done by letter. I do not know what date I wrote it. About Christmas time I gave her $20.” * * *
The wife denied he had ever given her $20. She testified that defendant insisted upon having sexual intercourse with her when she had a falling womb and was sick. We quote some of her testimony:
“I left him then because he wasn’t good to me. I couldn’t live with him. He treated me in a mean way. I could not rest at night.
“Q. Well, what do you mean by that? Tell the court about it.
“A. Well, I mean he was always hanging around me and he wanted to use me so much, and so long I could not stand it any longer. He always hang around me and do things to me that was nasty and mean and it made me pretty near crazy. I had to leave him, I could not stand it any longer.
“Q. Just tell the court about it?
“A. He not want to kiss me on the face, he want to kiss me on the lower body.
“Q. Want to kiss you in the private parts?
“A. Yes.”
The defendant denies her testimony. It was the claim of plaintiff that defendant accused her of un-chastity when there was no occasion for it. By consent of counsel the record and files in the first case were offered in evidence.
The court filed quite a long opinion in which the following occurs:
“There is no question but what these parties can never live together. They have no children. The breach between them has been widened by the fact that since September 22, 1923, defendant has not supported or offered to support plaintiff and has permitted her to work out by the day taking in washings and doing other work to support herself without any protest or any offer, of assistance on his part, while he himself was occupying the home, paying no rent and having none to pay, while' plaintiff has lived in rented rooms and cared for herself, and that notwithstanding defendant’s lack of contributing to plaintiff’s support that he has not kept up the monthly payments on said land contract to her father. * * *
“There is nothing in the testimony on the part of defendant and his witnesses to cause a most suspicious husband to believe that plaintiff was guilty of infidelity or to cause any suspicion in that direction. * * *
There is not a single word of testimony in the case showing any misconduct on the part of plaintiff and this young man, and to conclude, as defendant did, was extreme cruelty but so far as that charge was concerned, made by defendant prior to September 22, 1923, it probably is not available to plaintiff now as a cause for divorce but defendant’s treatment of plaintiff subsequent to September 22, 1923, and the statement in his answer to the present petition, are sufficient evidence of nonsupport and cruelty in my judgment and under all of the facts and circumstances of this case of awarding to plaintiff an absolute bill of divorce upon the grounds of nonsupport and extreme cruelty and she will be given a decree of divorce upon.those grounds.”
A decree was made accordingly. The case is brought into this court by appeal, counsel claiming, we quote from the brief:
“Defendant filed an answer denying the third charge and claiming the first two were res adjudicaba by virtue of a previous decree in a divorce proceeding between the parties, rendered on September 22, 1923.
“On September 10, 1924, five days after Judge Dunham filed his opinion, the plaintiff filed an amended petition charging defendant with nonsupport, only from the date plaintiff left defendant, May 2, 1923, up to the time of hearing.
“This presented a very narrow issue of fact, and inasmuch as the trial judge in his colloquy with plaintiff’s counsel said, ‘It is very evident we are not going to try that other case,’ the testimony in the present case offers a very meager source for a statement of facts embracing all the material issues involved. Inasmuch as the pleadings and proofs in the first case were admitted as exhibits we beg leave to base our statement of facts up to September 22, 1924, from them as follows:”
Counsel then proceeds to discuss the case upon the basis of the testimony taken at the first hearing. We again quote from the brief:
“ ‘It is well settled that a decree on the merits denying a petition for divorce is a bar to a subsequent petition for a decree for the same cause, and that a prior decree is res adjudicaba as to the existence of such cause though new evidence has been discovered in support of it.’ 9 R. C. L. p. 375.
“After that decree defendant was not obliged to support his wife or to pay for necessaries purchased by her as long as she chose to remain away from his home. 13 R. C. L. p. 1204.
“No duty is imposed upon the husband to support his wife during a separation, in the absence of culpability on his part, as no general duty is imposed upon a husband to support his wife otherwise than at the common home (citing Smith v. Smith, 73 Mich. 445 [3 L. R. A. 52, 16 Am. St. Rep. 594]).
“Randall v. Randall, 37 Mich. 563. A husband’s obligation to support his wife apart from him can only arise from his turning her out of doors or being guilty of such misconduct as would justify her in leaving him (cited in Martilla v. Quincy Mining Co., 221 Mich. 532 [30 A. L. R. 1249]).”
In this connection it should be remembered that the claim of the plaintiff is that there was no hearing upon the merits, and that the husband was culpable and created a condition that made.it impossible for the plaintiff to live with him.
The counsel for the appellee insists that upon this record the defense of res adjudicada is not open to defendant as it was not pleaded in bar, citing Searl’s Michigan Court Rules (2d Ed.), p. 177; and Vyse v. Richards, 208 Mich. 383, and the cases there cited. It is also insisted that when the plea in bar is interposed it should aver that the former decree was upon the merits (Detroit, etc., R. Co. v. McCammon, 108 Mich. 368). It has already appeared that, if the answer was to be treated as a plea in bar, it does not aver that the former decree was upon the merits of the case.
The instant case is an anomalous one. This opinion should not be treated as a precedent. It is based upon the record as presented in the court below, and in this court. We shall content ourselves by saying that taking the entire case as presented to us, we do not think we should disturb the decree which was entered. See Sullivan v. Sullivan, 112 Mich. 674; McCue v. McCue, 191 Mich. 1.
The decree of the court below is affirmed, with costs to the appellee.
McDonald, C. J., and Bird and Steere, JJ., concurred with Moore, J. | [
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Moore, J.
This is an action brought by the plaintiff as legal representative of the estate of William Mulder, deceased, to recover from defendants the value of certain land which it is claimed defendants obtained from William Mulder by fraud. On and prior to May 15, 1918, William Mulder was the owner in fee simple absolute of lot 6 of block 54 of the revised plat of the city of Muskegon, Michigan. He was then 89 years of age. On that day he deeded the above described land to defendants, and received from them a life lease to property known as number 96 Allen street, in the city of Muskegon, Michigan. At the time of this transaction William Mulder was living with his second wife, Aike Mulder, who prior to her marriage to him was Aike Roseboom. She was then 82 years of age. William Mulder lived 4 years and 8 months thereafter, surviving his wife by 10 weeks. The defendant Roelfien Bronsema was the daughter of Aike Mulder. William Mulder was not related to defendants other than by marriage. It is claimed by the plaintiff, but denied by defendants, that William Mulder was induced by fraud to deed the land to defendants. Plaintiff’s claim of fraud is predicated on the theory that at the time of the transaction William Mulder was mentally incompetent to manage and have charge of his property, or to transact any business, and that the deed was procured by undue influence practiced on William Mulder by defendants. These claims are denied by the defendants. At the close of the testimony offered by the plaintiff the defendants asked for a directed verdict. This request was overruled. At the conclusion of all the testimony the motion for a directed verdict was renewed. It was again overruled and the case was submitted to the jury in a very careful charge. The jury returned a verdict in favor of the defendants. No motion for a new trial was made. The case is brought into this court by writ of error.
We quote from the brief of counsel:
“Questions involved in assignments of error relied upon:
“The assignments of error relied upon by appellant to obtain a reversal of this case give rise to the following issues :
“(1) Did plaintiff by calling the defendant Berend Bronsema for cross-examination under the statute (3 Comp. Laws 1915, § 12554), to identify certain instruments, afterwards put in evidence, waive the privilege of the statute (3 Comp. Laws 1915, § 12553), so as to enable this witness to testify to all matters equally within the knowledge of the deceased?
“(2) Were the witnesses, Martha Westmaas and Annie Van Dam, competent and qualified to give_ an opinion as to the mental competency of William Mulder?
“(3) Did the admission of evidence * * * constitute reversible error?
“(4) Did the charge of the court and the refusals to charge * * * constitute reversible error?”
In our view of the case it will not be necessary to discuss these various assignments. The notary public who drew the papers was a witness; he testified in substance that he had known Mr. Mulder many years; that the papers which consisted of a deed of the property in question, a life lease, a mortgage for $800 given by defendants, and a note for like amount were drawn at the request of the parties. He testified that the papers were fully explained to Mr. Mulder, and that he understood them and was competent to make the ones he signed. He testified further that the defendants, at the request of Mr. Mulder, paid to him the $800 represented by the note and mortgage, and that he in turn paid the money over to Mr. Mulder. Many witnesses were sworn to the effect that Mr. and Mrs. Mulder were pleased with the exchange. Though the Mulders lived more than four years after the deed was made, no one has ever attempted to set it aside or to question its validity until this proceeding was begun in March, 1923. It is an interesting fact that the will under which plaintiff is acting was not executed until considerable time after the deed was executed. The testimony of the notary public and of the other witnesses for the defendants that Mr. Mulder was competent when the deed was made is not met by testimony which arises to the dignity of evidence. We think a verdict should have been directed for the defendants.
The judgment is affirmed, with costs to the appellees.
McDonald, C. J., and Clark, Bird, Sharpe, Steere, Fellows, and Wiest, JJ., concurred. | [
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Wiest, J.
In August, 1922, plaintiff, then 29 years of age, purchased passage on the steamer North American from Chicago to Duluth and return. She was accompanied by her mother and sister. On the trip down from Duluth it .was announced that a stop would be made at Sault Ste. Marie for an hour and passengers might go ashore. The steamer tied up at the Kemp coal dock' in Sault Ste. Marie about 5 o’clock p. m., the 11th of August, 1922, to take on fuel, the gang plank was placed to let passengers go ashore, and plaintiff, her mother and sister left the vessel and, following some of the other passengers, passed safely over tracks, by fuel piles and down a plank from the dock to the ground where a team road or way came to the dock from a public street. Along the side of this way was a narrow path, about two feet removed from the drive of the roadway, and plaintiff, with her mother ahead, her sister next and she in the rear, in single file, walked along the path toward the street, following the crowd. While so proceeding a Ford truck, owned by defendants McKay and McDowell, came down the driveway from the street at a high rate of speed, deflected from the drive, and struck and severely injured plaintiff. This suit was brought against the Chicago, Duluth & Georgian Bay Transit Company, owner of the steamship North American, the Kemp Bros. Coal Company, having control of the fuel dock, and McKay and McDowell, owners of the truck. At the trial the court discharged the Kemp Brothers and submitted the issues against the transit company and McKay and McDowell to the jury. Verdict was rendered against the transit company for $17,916, and not guilty as to McKay and McDowell. Upon reservation of a motion to direct a verdict in favor of the transit company, the question was later presented of the right of the transit company to judgment non obstante veredicto. The circuit judge, notwithstanding the verdict, entered judgment in favor of the transit company. Plaintiff brings the case here by writ of error.
No error is assigned to the judgment, rulings or charge of the court as to the other defendants.
Plaintiff was struck while she was at a point outside of the driveway and in a place of safety had not the truck left the drive. Was it negligence for defendant transit company to permit passengers to leave the vessel at the fueling dock and proceed across the dock, the tracks and fuel thereon, to a way used by trucks and teams, and along the side thereof to reach the public street? The character of the dock, with tracks thereon and fuel piled, was apparent to plaintiff and she safely passed over and by the same.
When the vessel tied up at the coal dock and landed passengers it was the duty of defendant transit company to bring notice to plaintiff of the proper way to the street and, in the absence of such notice or direction to proceed in a particular way, plaintiff had a right to use any path or way which reasonably appeared to be designed and used as a way to the public street, and it was the duty of defendant transit company, in such event, to see that such way was reasonably safe. Defendant transit company, however, was not required to protect plaintiff from the unforeseen acts of third persons. There was no inherent defect in the way over which plaintiff was going to the street, neither was her use of such way shown to have been perilous by reason of surroundings. Except for the unusual tort committed by the truck driver she would not have been injured.
The applicable rule in this case is: If the transit company, from existing conditions, should have anticipated that injury might come to a passenger in using the way from the dock, through the negligence of a third person, then it was its duty to exercise a degree of care commensurate with such foreseen danger. The evidence, however, does not bring the operation of the rule to this case. What process of reasoning will bring a finding that the carrier should reasonably have foreseen that a truck might leave the road and run over a person walking in the path outside of the road? In the country it is common for persons to walk in the road and also along the' side of the wrought part thereof, and it is considered safe to do so.
Plaintiff saw the truck, knew she was out of the road, had a right to believe she was in a place of safety, and was in a safe place if ordinary use of the way had prevailed. To hold the transit company liable for the consequences of the tort of the truck driver would extend its liability to that of an insurer, and no authority sanctions such an adjudication. Plaintiff was not placed in danger by reason of any obstruction or defect in the way, nor was the way one bringing her into a zone where such an unusual accident or injury, occasioned by a tortious act of a third person, should have been reasonably anticipated by the carrier.
The high degree of care exacted of carriers in conveying passengers does not extend to stational facilities and approaches. Ordinary care, in view of dangers reasonably to be apprehended, is the rule with reference to stations and approaches. McCormick v. Railway Co., 141 Mich. 17; Davis v. Railroad Co., 292 Ill. 378 (127 N. E. 66, 10 A. L. R. 254); 2 Hutchinson on Carriers (3d Ed.), § 941.
In Brooks v. Railroad Co., 168 Mass. 164 (46 N. E. 566), a passenger, while waiting on a station platform to take a train, was injured by a runaway horse. The court said:
“There is no doubt of the duty of a railroad company to use all such means and precautions as are reasonably practicable for the protection and safety of its passengers, not only from the negligence or misconduct of its own agents and servants, but also of other passengers, and of other persons who are not passengers. * * *
“The test of defendant’s responsibility for this accident is whether the defendant was reasonably bound to anticipate that such a thing might happen, and to take some special precautions against it.
“The accident arose from a cause wholly outside of the operations of the defendant. The plaintiff was not in a car, but on the platform. The horse was not in the defendant’s care or use, and did not run away in consequence of anything done by the defendant. If the horse had run upon the sidewalk of Tremont street and hurt persons traveling thereon, nobody would have thought of seeking to hold the city responsible. The rule requiring peculiar care of carriers of passengers is to be applied with reference to the circumstances. When passengers are on board a steamboat or a railroad car, of which the carrier has the exclusive management and control, the duty of the carrier has reference to that state of things. When passengers are on a wharf or landing place, or on the platform of a railroad station, which is usually an open and almost a public place, to which others than passengers and servants of the carrier are accustomed to have free access, the duty of the carriers has reference to that state of things. It is well known that it is not the custom to fence in railroad platforms for passengers at way stations. All through the Commonwealth they are often so arranged as to allow horses with carriages or wagons to come close up to them. It is made easy for passengers and others to come upon or to leave these platforms. * * *
“No case has been called to our attention where, under such circumstances, a carrier has been held responsible to one who, though a passenger, was upon the platform or landing place, and was hurt from a cause of this kind, arising entirely outside of the operations of the carrier.”
This accident was occasioned by the truck leaving the roadway. The truck driver apparently lost control of the truck. The accident was so out of the ordinary that we cannot say the danger to plaintiff was one the transit company, within reason, should have anticipated and have warned her or have prevented passengers from proceeding to the street upon the path along this drive. We must hold that the proximate cause of the accident was the carelessness of the truck driver and, in point of law, there was no causal connection between the act of the defendant in landing plaintiff at the coal dock and the wrongful act of the truck driver.
The learned circuit judge was right in entering judgment. This result renders it unnecessary to pass upon defendant’s motion to dismiss the writ of error.
The judgment is affirmed, with costs to the transit company.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Steere, and Fellows, JJ., concurred. | [
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McDonald, C. J.
This bill was filed to secure an. accounting of a partnership business in which the plaintiff and defendant Arehart were engaged under the firm name of the McIntyre Building Tile Company. The parties first began business together in 1919, at Otter Lake, Michigan. Their business was the manu facturing of cement blocks and building material. On July: 1, 1920, their plant was destroyed by fire. They bought new machinery and equipment and moved to Saginaw. They found no market there for their product and were compelled to suspend business. On June 16, 1921, they entered into a written agreement by the terms of which the partnership was dissolved and Lynn purchased Arehart’s interest. In April, 1922, they again became associated as partners in the same business at Mt. Morris in Genesee county, Michigan. This partnership agreement was not reduced to writing until November 10, 1922. The plaintiff was to devote his time to the manufacturing part of the business and the defendant was to sell the product. The plaintiff furnished the building and machinery and claims that Arehart was to pay him $900 for a quarter interest in the business. The expenses and profits were to be divided according to their respective interests. The business was not prosperous. On November 25, 1922, the buildings and equipment were destroyed by fire. The loss was settled with the Continental Fire Insurance Company through its agent, Edward C. Vanderwalker, for $5,262. Three-fourths of this money was paid to Lynn, which he used in paying the partnership debts, which at that time amounted to $2,582.75. The balance of the money was claimed by Arehart, but Vanderwalker was enjoined from paying it to him pending this litigation. It is the plaintiff’s claim that Arehart never paid the $900 which he agreed to pay for his interest in the business, but that he paid $72 for labor which was credited on the $900. He further claims that on the Sunday following the fire, during his absence at Charlotte, Arehart employed a number of trucks and hauled 12,000 building tile from the plant to the yards of the Flint Coal Company at Flint, Michigan, that he subsequently sold this tile but did not account for the proceeds.
Most of these facts are conceded, but the defendant denies that he agreed to pay to the plaintiff $900 for a quarter interest in the business. He says that the plaintiff borrowed $1,000 and put $900 of it into the partnership account, and that the agreement was that it should be repaid to him out of the profits of the business. He denies that he removed 12,000 building tile from the premises after the fire, but admits having taken away 8,795 tile which he sold and accounted for. He also claims that the partnership is indebted to him for $1,390 for expenses in making sales of the product in Flint, that he borrowed that amount from his brother and gave the partnership note in payment. On the hearing the circuit judge found against every contention of the defendant and determined the amount of his indebtedness to the plaintiff to be $1,799.31. From the decree entered the defendant Arehart has appealed.
It is first urged by the defendant that the court erred in charging him with $900 for a quarter interest in the business. The only dispute over this item of $900 was as to the manner of its payment. If it should be paid out of the profits as the defendant claims, he would be chargeable with one quarter of it or $225. If it was a personal obligation to the plaintiff, the full amount should be charged to the defendant. The partnership agreement shows that it was to be paid by the defendant. It reads as follows:
“David D. Arehart’s interest shall be one-fourth, subject to a $900 indebtedness to George W. Lynn.”
This language negatives the defendant’s claim that he was only to pay one-fourth of the $900. He took his interest in the business subject to the payment to Lynn of $900. The court properly charged him with the full amount less $72 which he had paid for labor.
The next item in dispute relates to the building tile which the defendant took from the premises on the Sunday following the fire. Thé court found that there were 12,000 tile taken and that the market price at the plant was $75 a thousand, that the total value was $900, and that the defendant should be charged with three-fourths of that amount. The defendant says that he did not realize that amount from the sale of the tile, that he sold them to various parties at different prices and that he paid $200 for hauling them away, which should be charged to the partnership. We are not favorably impressed with the conduct of the defendant in removing this tile without the knowledge or consent of Mr. Lynn. He says that when he employed the Commercial Truck Company to remove the tile, he knew that Mr. Lynn was away in Charlotte, and that he told them to haul it on Sunday because they could not be stopped by injunction on that day. At that time Mr. Lynn had approximately $7,500 invested in the business. The defendant had invested $72 and had not paid the $900 which he had promised to pay for his interest. In view of these facts, it is clear that in removing the tile he was endeavoring to take an unfair advantage of his partner. He acted in bad faith and if any loss grew out of the transaction he alone should be required to bear it. We think that as to this item in the accounting the court allowed the defendant all that he was entitled to under the facts.
On the hearing the defendant presented a claim of $1,399.26, which he insisted was a proper charge against the partnership for his expenses. The court rightfully disallowed it and it is not here insisted on by defendant’s counsel in their brief. In arriving at an accounting between these parties, we think that the conclusions of the circuit judge are in harmony with the facts, that his decree is reasonable and should be affirmed.
It is affirmed, with costs to the plaintiff.
Clark, Bird, Sharpe, Moore, Steere, Fellows, and WlEST, JJ., concurred. | [
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Clark, J.
Plaintiff received from the defendant the following writing:
“Option.
“This agreement, made this 10th day of November, 1922, by and between Margaret Michaux, widow, of Gratiot township, Wayne county, Michigan, the owner of the property hereinafter described, designated hereafter as the first party, and Prank Pfent, of the same place, the purchaser, and designated hereinafter as the second party.
“Witnesseth: That the said first party, owner, in consideration of the sum of $50 to her in hand paid by said second party, purchaser, receipt whereof is hereby acknowledged, hereby agrees that she shall and will at any time within two months from the date hereof, at the request of the said second party, execute and deliver to him, the said Frank Pfent, a good and sufficient warranty deed free from all liens and in-cumbrances, of the following described premises situated in the township of Gratiot, county of Wayne and State of Michigan, to-wit:
“30 acres of land more or less located and bounded on the north by the 7 Mile road, on the west by Hayes road, on the east by Cadieux road and on the south by unplatted land, the description in the said deed to be by metes and bounds after a proper survey of the said property has been made; the said land being more commonly known as the Michael Young estate, but now owned by the first party, for the suni of $40,000 payable as follows: The balance of $39,950 to be paid as follows: $9,950 within two months from date hereof, and the balance to be in reasonable quarterly payments after the first year under a mortgage covering on the said property, said mortgage to contain release clause on payment of proportionate amount for each lot released and the customary release of the streets and alleys from the operation of said mortgage in event of platting.
“The company is to have the tenant removed. The first party is holding 4 lots on 7 Mile rd. at the home now where first party lives.
“Dated, Detroit, Mich.,
November 10, 1922.
(Signed) “Margaret Michaux.”
Within the time plaintiff tendered the down pay ment and a deed, which was erroneous as to description. He also tendered a mortgage for $30,000 purporting to cover the description, made by himself and wife, in which there was a like error, payable “On or before 7 years from date hereof, with quarterly payments on the principal sum of $900 or more, together with interest at 6 per cent, per annum on all sums at any time unpaid hereon, said interest being payable quarterly, according to one certain promissory note,” etc. Conveyance was refused. Plaintiff filed bill for specific performance and had decree. Defendant has appealed.
Several interesting questions are presented. We find it necessary to consider but one. The term of the credit to be secured by the mortgage was not agreed upon. It was left open to further agreement. “Balance to be in reasonable quarterly payments after the first year” does not mean that the sum was payable in two years, as suggested by counsel. To so hold the word “reasonable” must be dropped. Then the language might be held to mean: Payable in quarterly payments during the second year. But clearly it was intended that the parties in making the mortgage were to agree upon some reasonable amount to be paid quarterly and thus to determine the time of the mortgage, the term of credit. The writing is therefore incomplete.
Plaintiff by tender of a mortgage in terms satisfactory to him did not thereby make a complete contract, nor place upon defendant an enforceable obligation to convey. An option is a mere offer. It may become a contract by acceptance within the time and according to its terms. If it is so lacking in material parts that acceptance of it does not make a complete contract, specific performance may not be decreed.
It was held in Rahm v. Cummings, 131 Minn. 141 (155 N. W. 201), quoting syllabus:
“An accepted offer to sell land for part cash and part deferred payment secured by a mortgage, but which specifies no time of payment of the mortgage debt, does not constitute a complete contract which can be specifically enforced.”
And in Schmeling v. Kriesel, 45 Wis. 325:
“The contract being to give credit for a part of the purchase money, and the time when the credit should expire and the money become payable not having been fixed by the parties, we think the contract is too uncertain or incomplete to authorize a court of equity to decree its specific performance.”
See, also, 5 Thompson on Real Property, § 4352; Tryce v. Dittus, 199 Ill. 189 (65 N. E. 220); Platt v. Savings Bank, 46 Conn. 476; Moore v. Galupo, 65 N. J. Eq. 194 (55 Atl. 628); Pomeroy on Contracts (2d Ed.), 217; Waterman on Specific Performance, § 143; 36 Cyc. p. 598; 27 C. J. p. 218; 2 L. R. A. (N. S.) 221, note; 21 L. R. A. 127, note; 25 R. C. L. p. 218; L. R. A. 1917D, 1079, note; Blanchard v. Railroad Co., 31 Mich. 43 (18 Am. Rep. 142).
Reversed and bill dismissed, with costs to defendant.
McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Sharpe, J.
Plaintiff’s decedent and his son, Hannes, were traveling east in a one-horse wagon used for delivering milk on College avenue, in the village of Houghton, on the evening of September 5, 1922. Near 8 o’clock, they reached the intersection of College avenue and Lake street. A stop was here made, and the boy got out to deliver some bottles. The head of the horse was then about at the west curb of Lake street. The deceased then turned to the north on the west side of the intersection, and when his horse had passed off the avenue his wagon was struck by an automobile belonging to the defendant company and driven by one of its employees, the defendant Frasher. The wagon was thrown or pushed a distance of about 75 feet. Arvo sustained injuries from which he soon after died.
The plaintiff as administratrix of his estate brought this action to recover the damages incident to his injury and death. The declaration contained a count alleging ordinary negligence of the driver and one alleging after-discovered negligence. Defendants’ motion for a directed verdict was taken under advisement and the cause submitted to the jury, who found in her favor on the first count in the sum of $4,440. A motion for judgment non obstante veredicto was overruled and judgment entered on the verdict. Defendants review the judgment by writ of error. The assignments relate to the refusal to enter judgment for defendants, to a paragraph of the charge as given, and to the refusal to give a request preferred by defendants.
1. The motion to direct was founded on the claim that deceased was guilty of contributory negligence as a matter of law. At the time of the collision, the deceased did not have a light displayed “in a conspicuous place on the left side” of his wagon, as required by Act No. 126, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 4865 [7, 8]). The trial court instructed the jury, in effect, that the failure of the deceased to comply with the statute was negligence on his part. He, however, left it to the jury to determine whether there was any “causal connection between the statutory violation or the doing or omitting to do the act and the injury.” This instruction but stated the law.
“The principle is, that to deprive a party of redress because of his own illegal conduct, the illegality must have contributed to the injury.” 1 Cooley on Torts (3d Ed.), 269.
See, also, Spencer v. Phillips & Taylor, 219 Mich. 353; Beebe v. Hannett, 224 Mich. 88.
The night was dark and rainy. Whether a light on the left side of the wagon would have been visible to Frasher, after the deceased turned to the left to cross the street, was, we think, a question for the jury. Beebe v. Hannett, supra; Martin v. Herzog, 228 N. Y. 164 (126 N. E. 814, 20 N. C. C. A. 97).
2. When the deceased turned to cross the street, defendant’s car was approaching from the east and on his right. It is urged that the car had the right of way under the statute and that deceased was guilty of negligence in attempting to cross in front of it. It was the duty of the deceased to look for the approach of vehicle from the east before he attempted to cross the street. In the absence of proof to the contrary, it must be presumed that he did so. At about the time he started to cross, Frasher, as he testifies, had dimmed his lights to pass a car he was meeting. If the deceased looked and did not see the approaching ear, or if, having seen it, he believed he would have time to cross before it reached the intersection, his conduct in proceeding presented a question as to his negligence for the jury. Hickey v. Railway, 202 Mich. 496, and cases cited. The law giving defendant’s car the right of way does not mean that all persons desiring to cross must await the passing of an approaching car. It simply means, as stated by the trial court, that if two cars meet at a crossing that on the right is entitled to pass over it before the other. See Pline v. Parsons, ante, 466, in which this question is discussed at length.
3. Defendants’ counsel presented a peremptory request that under the testimony there was no presumption that deceased was free from contributory negligence. This was based on the holding in Baker v. Delano, 191 Mich. 204, that such presumption exists only in cases “where there is an absence of any direct evidence to the contrary” and the surrounding circumstances remain unexplained. There is no direct evidence that the deceased could have seen the approaching car had he looked, or that it was then so close to the intersection that a person exercising ordinary care would not have concluded that he could safely cross in front of it. The defendant Frasher testified that he did not see the wagon until he got within five feet of it.
The judgment is affirmed.
McDonald, C. J., and Clark, Bird, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Fellows, J.
Plaintiff seeks in this proceeding to compel the circuit judge to dismiss a writ of certiorari issued on application of Nelson Company to review a judgment in justice’s court rendered in favor of plaintiff, on the ground of defective service. Defendant objects to mandamus as not being the proper remedy. Unless we disregard numerous holdings of this court this objection must be sustained. Defendant by refusing to dismiss the writ retained jurisdiction of the case; the appropriate remedies to’ review this question and all others involved in the case are open to plaintiff, and following such orderly procedure will cause no extraordinary injury to plaintiff; no question of public importance is involved. Upon the authority of the following cases: Michigan Mut. Fire Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270; St. Clair Tunnel Co. v. St. Clair Circuit Judge, 114 Mich. 417; Reed v. St. Clair Circuit Judge, 122 Mich. 153; Grand Rapids, etc., R. Co. v. Charlevoix Circuit Judge, 133 Mich. 122; Steel v. Clinton Circuit Judge, 133 Mich. 695; Roberts v. Lenawee Circuit Judge, 140 Mich. 115; Sharp v. Montcalm Circuit Judge, 144 Mich. 328; Hitchcock v. Wayne Circuit Judge, 144 Mich. 362; Peninsular Club v. Kent Circuit Judge, 150 Mich. 614; Warren v. Lenawee Circuit Judge, 160 Mich. 572; Hartz v. Wayne Circuit Judge, 164 Mich. 231; Olds Motor Works v. Wayne Circuit Judge, 164 Mich. 470; Mikkola v. Houghton Circuit Judge, 165 Mich. 583; Trumbull Motor Car Co. v. Wayne Circuit Judge, 189 Mich. 554; Detroit United Railway v. Wayne Circuit Judge, 212 Mich. 230, and numerous others, which might be cited,
The writ will be denied.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Stesre, and Wiest, JJ., concurred. | [
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Sharpe, J.
William Ball and the defendant Catherine Ball were married on July 22, 1920. Both had been married before and had adult children. He was at that time suffering from Bright’s disease. Three months later she made application to the probate court to have him adjudged insane. While it is claimed that she was advised to do so by Dr. Anderson, he was not called as a witness. In the petition, verified by her, she averred that he had no estate. He at that time had $520 on deposit in the defendant bank, and was receiving $38 monthly from payments on a land contract which he had assigned to the bank for collection.
Pending the hearing on the petition, she obtained his signature to a check on the bank account and redeposited the money to her credit. Neither his daughter, the plaintiff, who lived in Marquette, nor his son, who lived in California, were notified of the proceeding. On the hearing he was adjudged insane and ordered committed to Eloise hospital. He was, however, placed in a private sanitarium, the expense of his maintenance there having been paid by defendant.
On November 10th following, the plaintiff, having learned of his commitment, came to Detroit and filed a petition for a rehearing in the probate court. It was granted and resulted in his discharge. Pending the hearing on this petition, plaintiff was appointed his next friend and filed the bill of complaint herein, alleging that defendant had secured her husband’s signature to the check by fraud, and praying that the transfer be canceled and the moneys returned to him. An injunction was issued restraining the bank from making further payments to her.
On Mr. Ball’s discharge, he was taken by plaintiff to her home, where he died a few months later. While there, he made a will, in which plaintiff was named executrix. It was admitted to probate in Marquette county. Soon thereafter, this suit was revived in her name as executrix.
After hearing, the trial court granted a decree ordering the payment of the money remaining in the bank to plaintiff and the payment by defendant to plaintiff of $17.47, which he found had been illegally withdrawn by her. From this decree Mrs. Ball -appeals.
1. It is urged that the suit so begun would not lie; that a husband may not bring suit against his wife. The answer of Mr. Ball was not filed until after the order of revivor was made. The hearing was had without objection that the defendant was not properly in. court. As plaintiff, after her appointment as executrix, might have filed a bill containing the allegations and praying for the relief granted, we decline to consider whether the bill as originally filed could have been maintained had it been attacked.
2. Upon the merits it seems clear that the decree was justified. Mrs. Ball secured the transfer of her husband’s bank account from him at a time when she was claiming that he was non compos mentis. It is apparent that he had no intention of giving her outright the money he then had, well knowing that he was unable to earn more. The plaintiff as executrix is clearly entitled to that remaining in the bank. The item of $17.47 is not discussed by counsel, so we do not consider it.
The decree is affirmed, with costs to appellee.
McDonald, C. J., and Clark, Bird, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Sharpe, J.
On July 26, 1922, a representative of the defendant corporation was in Detroit and took three written orders for lumber, aggregating about 230,000 feet and amounting at the price agreed upon to upwards of $15,000, from the Bliss Lumber Company. These orders were accepted in writing by defendant’s representative in its name. His authority to do so is not questioned. After stating the kind and quality of the lumber to be shipped, the several orders contained the following:
“Terms — 2% upon arrival after unloading. This is in accordance with understanding between your Mr. J. L. Hall and Mr. E. M. Bliss.”
The defendant refused to ship the lumber, and plaintiff as receiver of the Bliss company brought this action to recover damages for breach of contract. Plaintiff reviews by writ of error the judgment entered on a verdict by the jury of no cause for action.
(The word “plaintiff,” when hereinafter used, will also apply to the Bliss company.)
With its plea of the general issue the defendant gave notice that it would show:
(1) That its acceptances of the orders were subject to an understanding that it might make an investigation as to plaintiff’s financial condition and, if not satisfactory to it, the orders might be canceled.
(2) That the orders were accepted in reliance on plaintiff’s express statement that the firm was at that time solvent, whereas in fact it was then insolvent.
We will consider the assignments of error in the order in which they have been grouped and discussed by counsel.
1. Over the objection of counsel for plaintiff, evidence was admitted tending to prove the claim of defendant as stated in the first paragraph of its notice of defense. Counsel for plaintiff insists that such proof tended to vary the terms of the written instru ment. If the orders were accepted by defendant’s salesman on the understanding that they should be binding upon defendant only in the event that on investigation it found the financial condition of the plaintiff to be such as would justify the making of such shipments to it, and the defendant, after an investigation, concluded that it would be unsafe to make delivery without security for the payment of the lumber to be shipped, there was nó breach of the contract on its part for failure to deliver. Cleveland Refining Co. v. Dunning, 115 Mich. 238. The test as to the admissibility of such proof is clearly stated by Mr. Justice McDonald in Frischkorn Real Estate Co. v. Hoskins, 226 Mich. 30, 33. It must appear that the contemporaneous oral agreement sought to be established—
“is consistent with the terms of the writing, not negatived by the writing itself, that it does not tend to vary or contradict the written instrument, and that its terms are independent of those which the writing purports to express.”
The parol understanding or agreement was not subject to exclusion under any of these tests.
In Rothstein v. Weeks, 224 Mich. 548, it was held that such an agreement was enforceable when the contract was one which the law required to be in writing.
2. It is urged that the separate defenses of which defendant had given notice were inconsistent with each other, and that there was error in permitting proof as to both and in their submission to the jury. While under the rules of the common law in an early day but one defense to an action at law was permitted, under our procedure separate and distinct defenses may be insisted, upon. The defendant here, in order to avail itself of the defenses relied on, was required to annex a notice thereof to its plea of the general issue (3 Comp. Laws 1915, § 12464), and to state each de fense in a separate division of the notice (Circuit Court Rule No. 23, § 5). These requirements, designed to prevent surprise to the opposite party, were complied with. There is some conflict in the authorities as to the right to interpose defenses which are inconsistent with each other. This subject is discussed at length in 31 Cyc. p. 143, and in 21 R. C. L. p. 472. A copious note, in which the cases are reviewed and commented on, will be found in 48 L. R. A., beginning at page 177.
Many of the cases cited and reviewed are from ' courts of last resort in States having a code practice. While this State has no code, our practice and procedure have been so liberalized by statute and rule that the holding in these States may well be said to be applicable here. In Creen v. Railroad Co., 168 Mich. 104, 110 (Ann. Cas. 1913C, 98), it was said:
“While this State has no code and the common-law form of pleading obtains, special pleadings have-been abolished, and numerous innovations and modifications which formerly would not have been tolerated have been introduced, tending to relax technical rules and simplify the practice.”
In jurisdictions, where the test of inconsistency is applied, the rule of determination is: Does the truth of one defense establish the falsity or impossibility of the other? It would be unreasonable to permit a defendant to call witnesses to establish a particular defense and then follow them with others who would deny the truth of what those first called had testified to.
The separate defenses here made show no such inconsistency. In effect, the claim of the defendant is (1) that its representative accepted the orders in reliance on the representation of Mr. Bliss that the company was solvent, and that payment for the lumber could be enforced against it, and (2) that, as a further precaution and protection to defendant, he secured from Mr. Bliss an agreement that the contracts should not be binding on defendant unless upon investigation it found that the plaintiff’s financial condition would warrant the shipment of the lumber.
Greenberg v. Sakwinski, 211 Mich. 498, was an action to recover a commission on a sale of real estate. In one count plaintiff claimed that he had found a purchaser, who had signed a land contract for the purchase, and that his commission was earned. In another he alleged that he had an exclusive agency, that it had been terminated by defendant without notice to plaintiff, and for that reason he was entitled to recover. This court held that the separate counts “fully advised of all plaintiff claimed, were cumulative, not inconsistent and required no election.” A rule as to inconsistent defenses certainly should be no more stringent in its application than to claims made in separate counts in a declaration. We conclude that there was no error in submitting these defenses to the jury.
3. It is urged that the undisputed proofs show that the representation made by Mr. Bliss was not relied on, and for this reason this claim should not have been submitted to the jury. It is true that the defendant did not ship the lumber in reliance on it. It is not seeking to recover damages for the fraud practiced upon it. It is justifying its refusal to comply with its undertaking to ship, evidenced by its acceptance of the orders, by showing that a representation made and relied on, when the orders were accepted, was not true.
4. Over plaintiff’s objection, defendant was permitted to introduce proof of the financial condition of the plaintiff before, at the time, and after the orders were accepted. Defendant is not predicating its claim of fraud upon the fact that plaintiff was insolvent at the time the contract was made. A dealer in financial straits may continue to purchase goods, if he buys in good faith and in expectation that he will be able to continue his business and pay for them. Illinois Leather Co. v. Flynn, 108 Mich. 91. The court in effect so instructed the jury. The issue here was as to the truth or falsity of the representation made. The proof submitted was, we think, admissible in its bearing upon that issue.
5. Error is assigned upon certain portions of the charge. It is said that in them the court “allowed the jury to interpret the written contract.” We cannot so conclude. In that part of the charge complained of, the court was instructing them upon the effect of the understanding or agreement referred to in the first paragraph hereof. We are satisfied that, taking the charge as a whole, it fully and correctly instructed the jury as to the issues they were to pass upon and the effect of their findings on disputed questions of fact.
After a careful consideration of the entire record, we cannot but conclude that plaintiff’s rights were fully protected on the trial, and that the verdict and judgment were warranted by the proofs.
The judgment is affirmed.
McDonald, C. J., and Clark, Moore, Steere, Fellows, and Wiest, JJ., concurred. Bird, J., did not sit. | [
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McDonald, C. J.
Edward Walls was convicted of manslaughter under an information charging him with having killed and murdered one Pinocle Reddick on the 31st day of August, 1922, at the city of Benton Harbor, Berrien county, Michigan. The people’s testimony tends to show that the two men got into an altercation over some money which defendant had loaned to Reddick; that during the argument the defendant pulled a revolver and began shooting; that Reddick, who was also armed with a revolver, responded by shooting at the defendant; that a number of shots were exchanged; and that finally a bullet from the defendant’s revolver pierced the heart of Reddick, killing him instantly; that Reddick was down with the defendant on top of him when this shot was fired; that having emptied his revolver he then grabbed Reddick’s and ran away; that as he ran he turned upon a man who was pursuing and tried to shoot him, but that the revolver did not discharge; that when arrested he told the sheriff that he had grabbed Reddick’s revolver and shot him with it. The defendant admitted that he shot Reddick, but insisted that he did so in self-defense. He says that Reddick began the assault by firing the first shot which took effect in his leg, and that after Reddick had fired a second time and twice wounded him, he, the defendant, pulled his revolver and commenced to shoot; that after he had emptied his revolver he dropped it and grappled with Reddick; that they both fell to the ground; that he got Reddick’s.revolver and ran away; that he saw some one pursuing him and believing it to be Reddick tried to shoot, but that the revolver was empty. When arrested the defendant had three bullet wounds in his body, one in his leg, one in his arm and the other in his hand. The trial resulted in a conviction of manslaughter. A motion for a new trial was made on the ground that the verdict was not sustained by the evidence. The motion was denied. Defendant brings error.
It is first urged that the court erred in refusing to allow counsel, in his argument to the jury, to comment on the defendant’s good character, and in instructing the jury that in the trial of a criminal case when no evidence is offered on the subject, the defendant “has no character whatever, either good or bad.” The great weight of authority supports the ruling of the circuit judge. There is no presumption in criminal cases that defendant’s character is good or bad. As stated by Mr. Wigmore in his work on Evidence, § 290, note 2, “the defendant’s character is simply a non-existent quantity in the evidence.” The rule stated by Mr. Wigmore was approved and adopted by this court in People v. Kemmis, 153 Mich. 117, and in People v. Lingley, 207 N. Y. 396 (101 N. E. 170, 46 L. R. A. [N. S.] 342, Ann. Cas. 1913D, 403). This question was also discussed at length and the authorities reviewed in a well considered opinion in Price v. United States, L. R. A. 1915D, 1070 (132 C. C. A. 1, 218 Fed. 149). Our attention is called to People v. Woods, 206 Mich. 11, in which it is claimed the contrary rule was announced. The subject was not directly before the court and was not one of the questions that passed into judgment in that case. What was there said was plainly obiter dictum. In People v. Kemmis, supra, the correct rule was announced and is controlling of the question in this case.
It is further urged in behalf of the defendant that the court erred in the charge given relative to the law of self-defense. The objection is stated by counsel in his brief as follows:
“The.correct rule of law was not announced to the jury. Self-defense was the ground on which respondent planted his fight for freedom. If he, in good faith, believed that his life was in danger, or that deceased was about to inflict serious bodily injury upon him, then respondent had the right to kill deceased to avoid the impending danger to his person or life. The court, however, stated to the jury that it was the sole judge of the reasonableness of the defendant’s apparent or apprehended danger.”
That this objection is without merit clearly appears from the following excerpt of the charge as given:
“It is not necessary to this defense that the danger should have been actual or real, or that the danger should have been impending, and immediately about to follow. * * * The actions and conduct of respondent are to be judged from the circumstances as they appeared to him at the time. One who is suddenly attacked by an adversary is not held to fine distinctions of judgment as to what is in the mind of his adversary, or what his adversary is about to do, or as to how much force it is necessary for him to use to protect his life or his person from serious bodily harm.”
Considered in its entirety, the charge as given was fair and impartial, and correctly stated the rules which the jury was to follow in determining whether the defendant acted in self-defense.
It is further urged in behalf of the defendant that the verdict is not sustained by the evidence, and that the court erred in refusing to grant a new trial on that ground. There is evidence which, if believed, warranted the jury in finding the defendant guilty of manslaughter. The defendant’s story as to how he came to have a revolver in his pocket at the time of the shooting is highly improbable, but there is no dispute about the fact that when he went out to look for Reddick that evening he took it from a coat that was hanging in his room and put it into the pocket of the coat which he was wearing. It is conceded that the bullet which entered Reddick’s heart produced instant death. ' The defendant says that he fired his revolver until he had emptied every chamber; that he then dropped it and grappled with Reddick, in an effort to take his gun away from him; that they both went to the ground; that he got the revolver and ran away. If the bullet which entered Reddick’s heart produced instant death, it could not have been fired until after Reddick was down and must have come from Reddick’s revolver in the hands of defendant before he ran away. Further evidence in support of this conclusion is found in the testimony of the witness who says that he heard Reddick call out, “Take this man off me,” and heard one Tom Jackson tell the defendant to get off of him. From this evidence the jury was justified in finding that Reddick was killed after he had been disarmed and thrown to the ground, and that the fatal shot was not fired in self-defense.
Our examination of the record convinces us that the defendant received a fair and impartial trial. He was well defended by able counsel and was accorded by the court every benefit to which he was entitled under the law.
The judgment of conviction is affirmed.
Clark, Bird, Sharpe, Moore, and Fellows, JJ., concurred. Steere and Wiest, JJ., concurred in the result. | [
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Fellows, J.
Plaintiffs are husband and wife and file this bill setting up that they executed a mortgage to the defendant upon property owned by them in Detroit for the sum of $15,000 of which they allege they only received $12,000, and claim that $3,000 was exacted by defendant as a bonus. Other allegations appear in the bill upon which no proof was introduced and for which nothing is now claimed. The mortgage had been foreclosed and the period of redemption was about to expire. No tender of what they claimed was due was made. Upon filing the bill an injunction was issued on the ex parte application of plaintiffs. Defendant by its answer expressly denies that it received $3,000 or any other sum as a bonus and by way of cross-bill asks that its title to the property purchased at foreclosure be quieted. The trial judge dismissed plaintiffs’ bill and entered decree on defendant’s cross-bill.
The business was conducted for the plaintiffs by the husband and for the defendant by its general counsel. Their testimony is in direct conflict. Plaintiff stoutly insisted in his testimony that there was deducted $3,000 as a bonus and defendant’s general counsel as stoutly insists that no bonus was paid to him or the company but that $2,000 was paid his son as a broker’s commission for procuring the loan, no part of which ever came to the possession of him or the company. The defendant further claimed that plaintiff misrepresented the amount of the mortgages on the property; that it was obliged to pay these mortgages in order to make its mortgage a first mortgage, and that it in fact advanced several hundred dollars in excess of the amount of the mortgage. The record and documentary evidence all sustains defendant’s claim. Defendant produced the checks and other memoranda having to do with this loan; the checks total $15,747.47, including one for $2,000 to the son of defendant’s general counsel; there was also produced a written order signed by plaintiff, Theodore Gerasimos, directing the payment of this sum. There was also produced his unsecured note to defendant which has not been paid. There was no check or combination of checks that sustained plaintiff’s claim that he paid a bonus of $3,000. This testimony must have convinced plaintiffs’ counsel that at least his client was mistaken. After the close of the proofs he insisted that the $2,000 check to the son was really the payment of a bonus and that is the only claim here made.
It is possible that defendant’s general counsel is subject to criticism for aiding his son in procuring this general commission. But the payment of a brokerage fee to a third party does not render the loan usurious (Secor v. Patterson, 114 Mich. 37, in which it was said):
“While the bargain made between Mr. Secor and Mr. Powell for the payment of $500 for the services rendered was a hard bargain, it was not an illegal bargain. It would hardly be pretended that, if Mr. Powell had been paid the money, it could be recovered back, or, if Mr. Secor had given Mr. Powell a second mortgage to secure his commission, that it could not be enforced. The rights and duties of a broker employed to secure a loan depend upon the same prin ciples which govern the broker who .undertakes to find a purchaser of property. The loan broker is entitled to his commissions when he has procured a lender who is ready, willing, and able to lend the money upon the terms proposed.”
We are satisfied on this record that no part of this $2,000 was returned to defendant or its general counsel. The burden was on plaintiffs to make their case. The trial judge who heard and saw the witnesses concluded they had not sustained the burden. In this conclusion we agree.
The decree will be affirmed, with costs of this court.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Steere, and Wiest, JJ., concurred. | [
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Sharpe, J.
At the conclusion of the hearing the trial judge filed the following opinion:
“In this case there was ample proof that shows plaintiff entitled to a divorce. These parties were twice married, Mrs. Moffet having obtained a divorce in June, 1906. They had a large family of children, and I believe largely on their account Mrs. Moffet remarried the defendant in May, 1907. Since that time he has failed to support his family, being shiftless, and, in my opinion, lazy. He was secretive as to his property. He dealt in tax titles, while allowing his own land to become delinquent for nonpayment of taxes. He testified he had never earned to exceed $500 per year in his life, although he appears to have been a man of some education, having in an early day taught school in Illinois, his other occupation being that of a carpenter.
“A divorce will be granted to Mrs. Moffet for nonsupport and cruelty.
“The property matters are difficult to dispose of, but, after considering the entire matter, having in mind it will be up to the plaintiff largely to support the youngest child, 11 years old, in my opinion she should have all the property except lots 7 to 12 _ of block 2, which contains the shack or building in which defendant makes his home. The defendant will also pay an additional sum of $2 per week to assist in the support of the child. The other property will not be any too much to allow to the plaintiff for her share and for what she will have to do in the way of assistance towards the support of the youngest child. Defendant will be required to pay an attorney fee of $60, less such amount as has already been paid therefor.”
A reading of the record satisfies us that the conclusion reached by him was fully justified by the proofs. The value of the real estate which plaintiff secures, over and above the incumbrances thereon, is less than $1,500. A part of this had been purchased with moneys awarded her in the former decree. The court retained jurisdiction to make such further order with reference to the minor child and her maintenance as changed circumstances may warrant.
The decree is affirmed, with costs to appellee.
McDonald, C. J., and Clark, Bird, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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McDonald, C. J.
The defendant was convicted of manslaughter and has brought the case here on exceptions before sentence. It is the theory of the people that on the 21st day of December, 1923, at the township of Montague, in the county of Muskegon, the defendant sold two bottles of moonshine whisky to one Fred Dahlman; that some of the whisky contained wood alcohol and other poisonous ingredients; that Dahlman gave the bottle containing the wood alcohol to Fred Marquardt, who drank of it with the result that he died .from its effects within an hour thereafter; that defendant in selling the liquor knew that he was doing an unlawful act; that he knew the liquor contained wood alcohol and that it was of greater potency and possessed poisonous ingredients not contained in ordinary whisky, and was dangerous for use as a beverage.
On the trial the defendant was a witness in his own behalf and gave evidence in complete denial of the claim that he had sold or furnished liquor of any kind to Dahlman. He here contends that the judgment of conviction should be reversed for the following reasons:
1. That the court erred in refusing to direct a verdict of acquittal. A directed verdict was requested by the defendant on the ground that there was no competent evidence tending to show that the deceased came to his death as the result of drinking whisky containing wood alcohol, or other poisonous ingredients. There is evidence that Dahlman bought two pint bottles of whisky from the defendant. One of them is referred to as the brown flask. It is this flask that the people claim contained wood alcohol. Dahlman gave the flask to the deceased. He drank the contents and about an hour later was found dead with the flask nearly empty lying by his side. Dr. Jensen of Montague arrived within five or ten minutes after his death. He examined the body and noted the surroundings. He says that he is familiar with the odor of wood alcohol and could distinguish it from the odor of ordinary moonshine. There was the odor of wood alcohol about the body and he got the same odor from the brown flask. It was his judgment that death had been produced by wood alcohol poisoning. An autopsy was held and no other cause of death was apparent. Dr. Herbert W. Emerson of the University of Michigan made a chemical analysis of the stomach and various other internal organs of the deceased. He testified that they contained wood alcohol, ethyl alcohol and amyl alcohol, or fusel oil. It appeared from the evidence that Dahlman had purchased moonshine whisky from other parties and had some of it with him at the time he got the brown flask from the defendant; that he treated various other men with this other whisky, and that they suffered no evil effects therefrom. It definitely appears that the contents of the brown flask were drunk by the deceased; that he was a strong man in good health; and that he died within an hour of the time that he imbibed this liquor. These facts and the fact that the autopsy disclosed no other cause of death, together with the opinion of Dr. Jensen, and the chemical analysis of the stomach and other organs, by Dr. Emerson, furnished sufficient evidence to take the question of the cause of death to the jury.
2. Error is assigned on the refusal of the court to exclude from the consideration of the jury the chemical analysis of the liquor by Dr. Emerson. The question was raised by motion and by request to charge. Three flasks each containing a small quantity of liquor were sent to Dr. Emerson for analysis. One of these was the brown flask in which there was about a teaspoonful of liquid; the other two contained a less amount. Dr. Emerson poured the contents of the three bottles into a glass and from his analysis of the compound testified that it contained wood alcohol, ethyl alcohol and amyl alcohol, or fusel oil. The brown flask was definitely identified as having come from the defendant, but there is nothing in the record to connect him with the other bottles. At least one of the three bottles used by Dr. Emerson did not come from the defendant, because Dahlman testifies that he got only two from him and one of them was the brown flask. The result of Dr. Emerson’s analysis should not have been received because it was made from liquor, some of which is not shown to have come from the defendant. As it was used by the people in establishing the cause of death and the defendant’s responsibility therefor, it was highly prejudicial to him. For this reason the judgment of conviction must be reversed.
We have considered all questions presented by the record but find no other reversible error.
The judgment of conviction is reversed and a new trial granted.
Clark, Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Clark, J.
Plaintiff had verdict and judgment for $30,000. Defendant brings error. Two questions were disposed of correctly by the trial judge in deciding a reserved motion to direct a verdict for defendant:
“The meritorious question presented under this motion is, whether plaintiff upon his own showing is precluded from recovery by carelessness on his part which either occasioned or contributed towards his injury; and secondly, whether there is any testimony tending to show negligent operation of the defendant’s interurban street car.
“The plaintiff’s testimony, giving to it that favorable construction which is requisite under a motion of this character, showed that he was driving the Ford automobile, accompanied by a male adult and the latter’s young son, at about 7:30 p.. m. on February 16, 1921. He was driving north on West Jefferson avenue, toward the city of Detroit. The pavement was wet and slippery upon the paved portion of the roadway. That portion of the highway between the street car tracks was unpaved, was affected by the moisture, and its road bed was, at a somewhat uneven grade, a little lower than the top of the street car rail. The plaintiff claims that, in order to avoid another automobile standing in the highway, he was obliged to turn to the left, and, in doing so, drove in and upon the street car track. The precise position of this stationary automobile, whether at the curb or standing out in the traveled portion of the highway, was not_ disclosed. The lights upon the plaintiff’s automobile were lit. Having gone upon the street car tracks, the plaintiff testified that he endeavored immediately thereafter to return to the paved portion of the street. While engaged in this endeavor, he saw at a distance of from two and one-half to three blocks, the defendant’s oncoming interurban street car, proceeding in a southerly direction, away from the city of Detroit and toward the plaintiff’s automobile. The slippery condition of the street railway roadbed and the elevation of the street car tracks above that roadbed prevented the plaintiff, according to his claim, from regaining the paved portion of the highway with his automobile.
“He says the effort to leave the street railway tracks and to return to the paved portion of the highway was continued.
“Passengers in the oncoming street car testified that plaintiff’s automobile was visible to them from their position in' front of the street car, for a distance of from two and a half to three blocks. These passengers further said that the motorman of the street car at no time slackened its speed, after the automobile was within their view, that the motorman did not apply the brakes until at or subsequent to the time when it collided with plaintiff’s automobile, and that, during at least a portion of the time while the street car was approaching the plaintiff’s automobile, the motorman was stooped over, apparently observing something within the vestibule of the street car.
“The collision seriously and permanently injured the plaintiff.
“One of the claims urged by the defendant in support of the contention of contributory negligence on the plaintiff’s part is that it was incumbent.upon him to have left his automobile and to reach the pavement, thus gaining a place of safety. This is predicated upon his statement that his automobile was proceeding within the tracks at a rate of about four miles an hour.
“This resumé of the plaintiff’s case, viewed in its most favorable light, clearly creates, in my judgment, an issue for the decision of the jury. The plaintiff had the right to go upon the street car tracks.' Not only had he this right, but it is a reasonable inference from the testimony to hold that entrance upon the tracks, if not physically necessary, was a prudent course of action in passing the stationary automobile.
“Having succeeded in passing this automobile, the plaintiff then undertook to return to the paved portion of the street. He could not accomplish it.
“Can it be said that, with the duty resting upon him, to propel his automobile with reasonable regard to the protection of his two passengers, there was a legal duty for him to abandon his automobile as the street car approached and the peril of collision impended.
“To answer this question correctly, one must consider all the attending circumstances. Neither the physical situation nor the time in which to act ac corded much opportunity for deliberation. It may well be said that the plaintiff momentarily hoped to reach a place of safety with his automobile. He_ had the safety of his two fellow passengers to consider. Whether it was reasonable to remain in the automobile or to abandon it, seems to me very clearly to present a question of fact and not one of law. This must also be said with reference to the plaintiff’s operation of his automobile. The facts which he claims impelled him to drive upon the street car track, the difficulties which he maintained prevented him from immediately regaining a position of safety in the highway, the speed at which he was propelling his automobile,— these, and the other circumstances confronting him, came within the scope of the duty of the jury, and not of the court.
“So, too, it may be said that the claims urged by the plaintiff as showing negligent operation of the street car, make that question one for the jury. When it is remembered that the plaintiff’s theory shows that the motorman could or should have seen the approaching automobile on the street car tracks a distance of from two and one-half to three blocks, that the automobile continued its progress within these tracks throughout that distance, that there was neither a lessening of speed nor an application of the brakes, nor any effort to bring the street car under such control as would avoid a collision, I think it clear that the issue thus raised comes within the provinces of the jury, and not of the court.
“Accordingly, the attitude taken at the close of the plaintiff’s case is now reaffirmed, and the motion for a directed verdict in behalf of the defendant, notwithstanding the verdict which the jury rendered, is herewith denied.”
Viewed retrospectively, it will appear, probably, to plaintiff and to others that it would have been better had he attempted to save himself by quitting the automobile before the collision.. But that does not determine the question. Plaintiff viewed the situation prospectively, in a sudden emergency, in peril. He, his passengers, his car, the interurban and those it carried, were in danger. To get his car from the track was desirable. That' he continued too long, perhaps, in his effort to leave the track, will not now be held to be contributory negligence as a matter of law.
Krouse v. Railway Co., 215 Mich. 139, is not decisive of the question. The case falls within the rule of Fehnrich v. Railroad Co., 87 Mich. 612:
“One put suddenly in peril is not required imperatively to do that which, after the peril is ended, it is seen he might have done and escaped. The law makes allowance for the fright and lack of coolness of judgment incident to such peril.”
See, also, Schnurr v. Railway, 222 Mich. 591; Gibbard v. Cursan, 225 Mich. 311; Weitzel v. Railway, 186 Mich. 7; Leary v. Becker, 190 Mich. 697.
It is urged that the verdict is against the great weight of the evidence. The ease is close but after due consideration we are constrained to agree with Judge Murphy, who said in disposing of the question :
“The verdict of a jury is not to be lightly set aside. That the court, were he a juror, would have reached a different conclusion upon the controverted facts, does not afford reason for vacating the verdict. This may only be done when it is clearly established that the jury’s decision does not find reasonable support in the evidence, but is more likely to be attributed to causes outside the record such as passion, prejudice, sympathy, or some extraneous influence.
“The defendant presented witnesses, some apparently disinterested, whose version of the facts attending the collision was wholly at variance with plaintiff’s claim and irreconcilable with it. Thus the jury was confronted with two sets of witnesses, four of them maintaining consistently the plaintiff’s theory, opposed by the group summoned in behalf of the defendant. There was no appeal to the jury by plaintiff’s counsel which tended to arouse their antipathies or to play upon their sympathies, and the court expressly instructed the jury to discard sympathy as a factor in reaching their verdict, whatever it might be.
“To hold in favor of the defendant’s position would be tantamount to saying that the jury were in duty bound to discard the testimony of the plaintiff’s witnesses as carrying a lesser probative force than that of the defendant’s witnesses. Such a holding, in my view, would invade the province of the jury. It was their function, and theirs alone, to ascribe the true relative weight to be accorded these opposing and irreconcilable groups of witnesses. I am unable to say that, in accepting the plaintiff’s group as furnishing the evidence, upon which to base a verdict, the jury must be said to have disregarded the greater weight of the evidence.”
Ignatz Cetnar and John Weslowicz, plaintiff’s witnesses, testified that they were passengers on the interurban and saw the accident. Their testimony is strongly corroborative of that of plaintiff.
After motion for new trial had been denied, defendant filed motion for leave to file a motion for a new trial. We quote the decision of the trial judge:
“This is a motion for leave to file a motion for a new trial herein. A motion for a new trial has heretofore been denied. This application is made chiefly in reliance upon a letter said to have been written, sent by one of the plaintiff’s witnesses, Ignatz Cetnar, subsequent to the giving of his testimony. The trial herein was had in the month of January, 1924. The witness Cetnar committed suicide in the month of June, 1924. The letter referred to was written by him during the interval between the trial and his death. It is written in his native tongue — Polish— and was mailed to the claims department of the defendant company. Upon the trial Cetnar testified that he was an eyewitness of the accident involved. In his letter this testimony is stated to be false, and to have been induced by the promise of the payment of $500 by the plaintiff to Cetnar.
“A further proffer of impeaching testimony is made by the defendant. It is offered to show that subsequent to the trial Cetnar admitted orally to two men that he was not a spectator of the collision in question.
“Properly to consider the admissibility of the fore going documentary testimony and the testimony of the living witnesses, this test should be applied: Would this proffered testimony be received in the event that a new trial were granted? The familiar rule for the admission of impeaching testimony requires that the witness whose testimony is sought to be impeached should first be given opportunity through proper examination either to admit or explain or deny the claimed impeaching testimony. The death of Cetnar of course makes the application of this doctrine impossible. Is this rule to be relaxed because of his death?
“A similar situation, although involving the decision of the question in the trial of a capital offense in the Federal jurisdiction, was presented to the Supreme Court of the United States in the case of Mattox v. United States, 156 U. S. 244 (15 Sup. Ct. 337). While it is at once obvious that there was necessarily involved in the decision in that case the constitutional provision that an accused shall be confronted by the witnesses against him, wherein there is a vital distinction between that case and the case at bar, nevertheless the reason of the rule and an analysis of the adjudication of the rule are therein given, in the majority opinion of the court, written by the late Mr. Justice Brown. There was a dissenting opinion in which the considerations which argue for a relaxation of the rule on the ground of an overruling necessity, was also filed.
“The question seems to be one of first impression within this jurisdiction. I am of the view that the reasons elaborated by Mr. Justice Brown and the authorities cited by him in support of that reason, enunciate the safer and the wiser doctrine. Accordingly, were a new trial granted and such testimony proffered, including the oral as well as the documentary offer, I would exclude it.
“The motion for leave to file a motion for a new trial is therefore denied.”
This decision squares with the weight of authority. It is said in 40 Cyc. p. 2723:
“Absent witness — The rule that a witness cannot be impeached by proof of inconsistent statements unless a foundation is first laid by interrogating him in re spect thereto is not rendered inoperative by the fact that the witness whom it is desired to impeach is not physically present in court, and such foundation therefore cannot be laid, and hence where testimony taken by interrogatories or deposition, or testimony given on a former occasion by an absent or deceased witness is introduced in evidence, contradictory statements of such witness cannot be shown unless a proper foundation was laid, at the time when such testimony was given.”
And in 5 Jones Commentaries on Evidence, § 846:
“The general rule of exclusion applies where the witness whose testimony is attacked is deceased or absent. Thus where the testimony given on a former trial by a witness, .since deceased, is read to the jury, it is incompetent to show that such witness had stated, since the trial, that such testimony was untrue.”
And in Runyan v. Price, 15 Ohio St. 14:
“If we look at the principal question decided in this case simply as one of judicial policy, without reference to the authority of adjudged cases, it seems to me that a reason in addition to any that I have yet heard stated, may be found in favor of our conclusion in the following considerations:
“ ‘Dead men tell no tales’; and if the rule be once established that the testimony of a deceased witness may be impeached by giving in evidence declarations alleged to have been made by him out of court differing from those contained in his testimony, and when he has had no opportunity for explanation — when all opportunity for explanation by him has passed away —when few will have the motive, and none the power to vindicate his integrity and truthfulness such as he would have if living, it seems to me that temptations to perjury and subornation would be not a little increased by the comparative impunity with which those crimes might be committed. Such declarations, at best, are the lowest kind of evidence; and the administration of justice will suffer little in any case by their exclusion; while, if admitted, and they are falsely alleged against a dead witness, it would be hardly possible ever to disprove them.”
See, also, Stacy v. Graham, 14 N. Y. 504; Craft v. Commonwealth, 81 Ky. 250 (50 Am. Rep. 160); Eppert v. Hall, 133 Ind. 418 (31 N. E. 74, 32 N. E. 713); State v. Johnson, 35 La. Ann. 871; Ayers v. Watson, 132 U. S. 394 (10 Sup. Ct. 116).
Although the judge at the conclusion of proof invited requests to charge and again in closing his charge asked counsel if anything was to be suggested, no request-or suggestion was preferred on the subject of damages. The instruction on the subject, otherwise correct, did not direct the jury that, if allowance were made for'future earnings, they should compute the present value on the basis of plaintiff’s age and expectancy of life. Instead he said:
“If there is any permanent injury of any kind, it would be your duty, in awarding him a verdict, to give him at present what he would sustain during the remainder of his life, because permanent injury must be compensated for.”
If it were now urged that the instruction was merely insufficient or incomplete, it could be passed because of the silence of counsel and- their failure to request a charge on the subject. Hartwig v. Kell, 199 Mich. 603. But to instruct the jury to give at present prospective damages, not reduced by computation of present worth, is error. But it goes only to the amount of the verdict, and a reduction protecting defendant fully may be ordered here as a condition of affirmance. Gallagher v. Monroe, 222 Mich. 202; Sweeney v. Moreland Bros. Co., 227 Mich. 203; Gwitt v. Foss, 230 Mich. 8.
Of plaintiff’s injuries we quote again from an opinion of Judge Murphy:
“The plaintiff is 33 years of age; his expectancy of life, according to the mortality tables, is 33.21 years. Prior to this accident he had never been ill. He had worked steadily. His earnings over a very con siderable period of time, at the Detroit City Gas Company, were six dollars a day for an eight-hour day. In addition to this regular wage, he received a bonus of ten dollars a month, if he worked 30 days every month. He had been in receipt of this bonus throughout his employment with the company. Thereby he earned $190 a month.
‘‘The physical injuries he sustained were most serious in their nature and nearly resulted in his death. He was unconscious from two to three weeks following the collision. He was confined in a hospital from the date of the collision, February 16, 1921, to June 22, 1921. His hands were injured, and both of his arms were broken. His left leg was crushed, and there has resulted a permanent stiffening of the left knee due to ankelosis. He was crushed between the eyes, and there has resulted a permanent deformity due to a loss of the upper part of his nose. The upper jaw bone was broken, and though the fracture healed, there was left an impairment of his power of mastication, because of protruding lower teeth. There are scars on his face and a bump upon his head, which are permanent. For from ten to twelve days following the injury his case, in the language of a medical witness, was a ‘borderline case’ for the eventuality of life or death was uncertain. He also lost some of his teeth.
“When he regained the power of locomotion, he was obliged to go upon crutches for 16 months. After the crutches were discarded, he was obliged to use a cane for a period of six months. It was not until June, 1923, that he was able to attempt work.”
Plaintiff’s actual monetary losses from the time of the accident to the time of the trial were $6,460. The remainder of the verdict must cover damages for impaired earning capacity, pain and suffering, for deformities, and for impairment in ability to masticate: The amount allowed as prospective damages we have no means of knowing. A reduction of verdict to $21,000 will render the error without prejudice to the defendant, and that amount is not excessive. Fish- leigh v. Railway, 205 Mich. 145; Clumfoot v. St. Clair Tunnel Co., 221 Mich. 113.
We have considered all questions raised. If within 30 days plaintiff will remit the judgment down to $21,000, it will stand affirmed in that amount, but without costs for the reason stated. If plaintiff does not remit, the judgment will be reversed and a new trial granted, costs to abide the result.
McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Bird, J.
The defendant was charged with murder, and convicted of manslaughter. His counsel makes but one complaint in this court. This complaint is based upon the refusal of the trial court to admit a statement in evidence which defendant made to the prosecutor on the night of the murder at police headquarters. From the record it appears that defendant was boarding with Louis Rossi, the deceased. Rossi had other boarders. On the evening of November 25, 1928, defendant, with other boarders, engaged in an Italian card game. They played cards and drank wine until a late hour. When Rossi came home from his work about midnight he joined the party and defendant withdrew.. Defendant then began to wrestle with another boarder. Mrs. Rossi tried to quiet them. Failing in this she attempted to enter the room where they were. In doing so she broke the glass in the door and cut her hand. A controversy followed in which defendant was censured by Angelo Rossi, Mrs. Rossi’s brother, for causing the injury to Mrs. Rossi. Defendant went to his room and came back and began shooting at Rossi and Angelo, his brother-in-law. Rossi lived only a short time. Angelo was badly injured, but recovered, and was a witness at the trial.
Among other defenses, it was insisted that defendant was so completely under the influence of wine that he was insane and incapable of forming an intent.
After the shooting, defendant left the house and went to the 10th precinct police station and reported the shooting. He returned with the police and remained outside while they investigated. After investigating, they came out and arrested defendant and took him to the police station. Later he was transferred to the central station where he made a statement to the prosecutor and it was taken steno-graphically and afterwards transcribed. Defendant was desirous of having the statement admitted in evidence, but the court refused to admit it on the ground that it was a self-serving statement.
Some questions are raised whether the statement was properly offered, or whether it was ever offered in evidence. Passing over these technical objections, we will proceed directly to consider the meritorious question whether the statement was admissible.
The statement is by question and answer and, in substance, defendant states therein that he is 31 years of age; that he boarded with Mrs. Rossi, and that she had other boarders; that on the night of the shooting defendant and other boarders were playing cards, not for money but for wine. Soon after midnight Rossi returned from his work and engaged in the card game; that he did not do the shooting and did not know who did it, but afterwards stated that Tona Rea did the shooting; that he had no gun, and never had one. He denied that he was drunk, but admitted that he had drunk two glasses of wine; that a fight preceded the shooting; that he was in bed at that time; that he got up and came out to see what the trouble was; that he wanted to see his lawyer Maiullo tomorrow.
The rule which admits hearsay statements as a part of the res gestse of a transaction is commented on in R. C. L., as follows:
“Time is not necessarily a controlling element or principle in the matter of res gestse. The general rule is that declarations sought to be proved must have been contemporaneous with the event established as the principal act; but in order to constitute declarations a part of the res gestse it is not necessary that they shall have been precisely coincident in point of ■time with the principal fact. If they sprang out of the principal fact, tend to explain it, were voluntary and spontaneous, and made at a time so near it as to preclude the idea of deliberate design, they may be regarded as contemporaneous, and are admissible in evidence. Declarations made immediately preceding a particular litigated act, which tend to illustrate and give character to the act in question, are admissible as part of the res gestse. A declaration, however, which is merely a narrative of a past occurrence, though made ever so soon after the occurrence, is not a part of the res gestse, and cannot be received in evidence.” 10 R. C. L. p. 978.
“The declarations of a party may be evidence for himself, as a part of the res gestse, when they accompany and explain his actions; but not when they are mere self-serving declarations and do not accompany the acts in issue, but are made at a place distant from it.” Id. p. 980.
This court has approved in two recent cases a rule by which such statements may be tested.
“'It is well established by the authorities that the only conditions upon which such statements will be allowed in evidence are (1) That there is a startling occasion, startling enough to produce nervous excitement, and render the utterance spontaneous and un- reflecting; (2) that the statement must have been made before there has been time to contrive and misrepresent, and (3) the statement must relate to the circumstances of the occurrence preceding it.” Rogers v. Railway Co., 187 Mich. 490; Stone v. Sinclair Refining Co., 225 Mich. 344.
See, also, Hyatt v. Leonard Storage Co., 196 Mich. 337.
Tested by these rules we think it is clear that the trial court was justified in refusing to admit the statement. The statement was not made coincident with the happening of the event to which it relates. The shooting occurred at about 1 o’clock in the morning. The statement was not made until after 4 o’clock and not until after defendant knew that he was suspected of having done the shooting. The trial court was' right in concluding the statement was self-serving. The whole tenor of the statement is an effort to free himself from the suspicion of having committed the deed. He was in the custody of the law, and the statement indicates that it was not spontaneous but that he was conscious that the hand of the law was descending upon him. This is shown by his charge that another did the shooting. The statement was not made under such circumstances as entitled it to be admitted as a part of the res gestse. Neither do we think the statement was used on cross-examination of defendant in such a way as to make it admissible.
The judgment of conviction is affirmed.
McDonald, C. J., and Clark, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Sharpe, J.
Edward Dzwonkiewicz, a minor, was seriously injured in an automobile accident by a vehicle owned by the Detroit Motorbus Company in October, 1923. He was taken to Harper hospital and attended professionally by Dr. McAlpine, the appellant herein. A surgical operation was performed and attendance given for a period of about five months. The father of the minor, who was a day laborer, had abandoned his family. The mother frequently met the doctor at the hospital, but the question of compensation was not discussed with her. An action was brought by the mother as next friend against the Motorbus Company and judgment recovered for $7,500, which was settled on payment of $6,500. This sum, less the fees of the attorney, was paid to the mother, who had been appointed guardian of the infant by the probate court. Soon thereafter, Dr. McAlpine filed a petition in the probate court, setting up the above facts and averring that the services rendered by him for the infant were of the value of $500 and that the guardian had sufficient funds in her hands to pay for such services. He asked for an order requiring payment by her. Proof was taken by the probate court. The charges were found to be reasonable, and an order was entered directing payment thereof by the guardian. This order she reviewed by certiorari in the circuit court. The trial court there held that the plaintiff (the doctor) had “mistaken his remedy;” that he should have proceeded by suit against the guardian, and set aside the order entered. This order the doctor here reviews by writ of error.
Section 13968, 3 Comp. Laws 1915, provides:
“Every guardian appointed under the provisions of this chapter, whether for a minor or any other person, shall pay all just debts due from the ward,” etc.
It appears from the record, as above stated, that the father had abandoned his family. The services performed by the doctor were without express _ contract for payment. We have no doubt that the infant is liable for the reasonable value thereof on an implied contract to pay therefor. Such services as were here rendered by the doctor were “necessaries” within the meaning of that term as applied to the liability of infants to pay therefor,
“The most usual things which are considered necessaries are those answering the bodily needs of the infant, without which the individual cannot reasonably exist, * * * such as * * * medicines and medical attendance furnished him when his health or physical condition require them.” 31 C. J. p. 1079.
See, also, Harris v. Crawley, 161 Mich. 383.
The trial court did not hold otherwise. He was of the opinion that under the holding in Lothrop v. Duf-field, 134 Mich. 485, plaintiff’s remedy was by suit against the guardian. In this we think he was in error. In that case, Mr. Duffield was employed by the guardian to prosecute a claim on behalf of the infants. His bill for services was allowed in the probate court. It was held that, as there was no privity of contract between him and the infants, his claim was one against the guardian, with whom he had contracted, and that the only jurisdiction of the probate court concerning it was when passing on the guardian’s account after payment.
The right of the plaintiff to recover in this proceeding is dependent upon the implied contract of the ward to pay him for his services. He had no contract with the guardian. The proceeding to obtain allowance of the claim is akin to that of a creditor with a claim against the estate of a person deceased. It is the duty of a guardian under section 13968 to “pay all just debts due from the ward.” In State v. Dunbar’s Estate, 99 Mich. 99, it was said that such' debts should be paid “upon the approval of the judge of probate,” and that such approval might be invoked by the person having such claim. See, also, Simons v. Van Benthuysen, 121 Mich. 697, and Nolan v. Garrison, 156 Mich. 397. There is no more of a denial of the right to a jury trial in such a proceeding than in the allowance of claims against an estate by the probate court. In either case, an appeal may be taken to the circuit court, where the liability and the amount thereof may be determined by a jury if desired.
The order reviewed will be set aside and that of the probate court affirmed. The plaintiif will have costs against the estate of the ward.
McDonald, C. J., and Clark, Bird, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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McDonald, C. J.
This action is brought to recover damages for fraud in the sale by the defendant of a certain stock of goods and fixtures which he owned in the city of Owosso, Michigan. The plaintiff is a married woman living with her husband, John E. Aitken. On the 19th day of October, 1920, Mr. Aitken made an agreement with the defendant for the purchase of -the goods in question at a consideration of $49,371.83, he to assume liabilities amounting to $12,774.34, to pay $10,000 in cash and to give his notes maturing at different periods for the balance. To obtain the money necessary for the cash down payment, Mr. Aitken made a loan of $3,500 from the Citizens Savings Bank of Owosso, secured by a mortgage on his home, the title to which was held by him and the plaintiff by the entireties. He also withdrew from the bank and paid to the defendant $4,000 from their joint savings account, and borrowed $2,500 on his note from a Mr. Smith. A note of $5,000 givéneto the defendant as part payment of the balance.of the purchase price was secured by a second mortgage on their home. It is the plaintiff’s claim that, in making the sale, the defendant falsely represented the value of the stock and fixtures and the profits of the business; that the business was not profitable, and that after trying to operate it for a year Mr. Aitken was compelled to go into bankruptcy. She says, that because of the defendant’s fraud she has been damaged by the loss of her home and one-half of the $4,000 joint savings account. The theory upon which she claims the right to these damages is that in this transaction with the defendant her husband was acting as her agent, and that she relied on the representations made to him. In defense, it is claimed that there was no agency, but that if there was it was not disclosed to the defendant, and that the plaintiff, by her conduct, is now estopped from asserting it; that believing he was doing business with the principal, the defendant made a settlement with Mr. Aitken for all the damages claimed by discharging a mortgage for $5,000 on their home; that the plaintiff, with full knowledge of what was being done, remained silent as to her interest and accepted the benefits of the settlement. At the conclusion of the plaintiff’s case the court directed a verdict for the defendant. A request for a new trial was denied and the plaintiff brings error.
The main question involved relates to the action of the court in directing a verdict for the defendant. The plaintiff bases her action on the theory that throughout the transaction with defendant, her husband, John E. Aitken, was acting as her agent, that he kept her fully informed as to every step that was taken in the negotiations for the purchase of the property in question, and that in consenting to furnish a part of the purchase price she relied on the representations made to her agent, which were false and which resulted in the damages she is here endeavoring to recover. It was the opinion of the circuit judge that she was bound by the settlement made with her husband, and that by her conduct she was estopped from asserting his agency. We think that the circuit judge reached a correct conclusion.
Assuming but not deciding that Mr. Aitken was the plaintiff’s agent, that fact was not disclosed to the defendant until after the settlement. In the entire transaction there was nothing to indicate to a reason ably prudent man that Mr. Aitken was representing any other person. So on this record it must be conceded that the defendant was ignorant of the existence of a principal at the time he made his settlement for damages with the agent. He supposed that in discharging the $5,000 mortgage he was settling his entire liability. The plaintiff knew that a settlement was being made with her agent. She said nothing until after it had been completed, and she had received the benefits therefrom. Then for the first time she disclosed the agency and began suit against the defendant, claiming damages growing out of the same false representations that he had been released from by settlement with her agent. When she decided to reveal her identity as principal, the agent, with her knowledge and consent, had secured a discharge of the $5,000 mortgage on their home and had given the following release:
“In consideration of one dollar and other considerations to me in hand paid by Charles A. Lawrence, I hereby acknowledge full satisfaction of any and all claims against him and also release him from any claims of fraud and misrepresentations, in the sale to me of the stock of goods, wares and merchandise, in the city of Owosso, which I purchased from him in October, 1920, and also any fraud in regard to the placing of any mortgage against my homestead.”
Having full information of the settlement and of the negotiations that led up to it, and failing to disclose her identity as principal, the plaintiff must be required to assume the responsibilities of the contract which her agent arranged with the defendant. As an undisclosed principal she is bound by the settlement made by a person who had every reason to suppose that he was dealing with the only party in interest.
In view of the undisputed facts and the law applicable to the rights of third parties in dealing with agents of undisclosed principals, the circuit judge did not err in directing a verdict for the defendant.
The plaintiff made a motion fo^a new trial on the ground of newly-discovered evidence and has assigned error on the refusal of the court to grant her motion. In his reasons for denying the motion the court said:
“As to newly-discovered evidence since the trial, the court is of the opinion that no new trial should be granted on that ground as diligence has not been shown to have been exercised by the plaintiff in the securing of such evidence at the trial recently concluded.”
As it appears from the showing made that the witness whose testimony was desired on a new trial resided within a short, distance of the court house at the time of the trial, and that the subject-matter of his testimony and the materiality thereof were known to the plaintiff at that time, we think the trial court gave a sufficient reason for his refusal to grant the motion.
The judgment is affirmed, with costs to the defendant.
Clark, Bird, Sharpe, Moore, . Steere, Fellows, and Wiest, JJ., concurred. | [
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Wiest, J.
Defendant stands convicted of a second violation of the law prohibiting possession and transportation of intoxicating liquor, and reviews on exceptions before sentence. A police officer saw defendant throw two jugs from his automobile, picked up the jugs, one of which was broken, and found they contained intoxicating liquor. The officer so testified and was then asked by the prosecuting attorney:
“Could you in any way be mistaken as regards those jugs, where they came from?”
It is insisted this was error. The officer had un-qualifiedly testified to seeing the jugs thrown from defendant’s automobile, and we fail to note reversible error in the senseless effort to make the positive more positive.
At the close of defendant’s proofs the prosecution was permitted to show a former conviction, in support of the charge of a second offense. While the prosecution should have offered such proof before introduction of evidence by defendant, there was no error in admitting it at any time before the case was submitted to the jury.
The conduct of the prosecuting attorney is complained of, in that he insisted upon asking improper questions after adverse rulings by the court. He wanted to impeach one of defendant’s witnesses upon a collateral matter, and this the court would not permit. The court was right. We must assume that the prosecuting attorney then knew he had no right to ask the questions for such purpose, yet he stated in questions after such rulings the substance of the impeaching matter. The learned circuit judge not only excluded the offered testimony but fully protected defendant’s rights in his instructions to the jury. The practice so indulged by the prosecutor was manifestly improper, and not palliated by ignorance on his part, but we think the error was cured by the court.
We find no reversible error and the conviction is affirmed with direction to proceed to judgment.
Bird, Sharpe, Moore, Steere, and Fellows, JJ., concurred. McDonald, C. J., and Clark, J., concurred in the result. | [
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Sharpe, J.
Ralph Beauchamp was in the employ of defendant in its yards at West Bay City as a member of its switching crew on February 21, 1923. He was thrown from the top of a box car by its impact with a car coupled to the locomotive, and sustained injuries from which he died a few hours later. Plaintiff, as administratrix of his estate, brings this action to recover damages therefor. She had verdict for $15,000. At the close of the proofs, defendant’s counsel moved for a directed verdict, which was taken under advisement by the court. It was renewed after verdict and denied, and judgment entered on the verdict. It is here insisted that this motion should have been granted.
We must consider the facts in the light most favorable to plaintiff’s right to recover. There is, however, no substantial dispute as to how the accident happened. The switching crew consisted of an engineer, fireman, conductor and two brakemen. Their operations took them to what is known as the Clute Coal Company’s yard. While there, the fireman left the cab in response to a call of nature, and one of the brakemen took his place. Some cars had been pushed upon one of the sidings. The conductor rode on one of them to stop them where they were intended to be placed. He had not returned at the time of the accident. It was discovered that two box cars which had been placed on a siding had not been pushed in far enough to clear. The box car coupled to the locomotive stood about 40 feet from the switch. The deceased opened the switch and signaled the acting fireman, on whose side he was, to back up. He then passed between the cars. The fireman informed the engineer that deceased had passed over to his side. The engineer, in response to the signal, backed his locomotive. Unknown to both the engineer and fireman, the deceased went up the ladder of the standing car nearest to the switch and released the brake on it. While yet on the car, the car attached to the locomotive came in contact with the standing car, the impact causing the deceased to fall between them.
The negligence of the defendant is predicated on the conduct of the engineer. The court charged the jury:
“If * * * this locomotive and car was operated in an unusual manner, and was driven back with an unusual force, and not in the manner in which a careful, prudent engineer, a capable engineer, would have done, then it is for you to say whether or not they were not guilty of negligence, and if they were guilty of negligence it is for you to determine whether or not that negligence was the proximate cause of the injury; if it was not then there could be no recovery, and if there was there would be.”
The conductor, called for cross-examination by the plaintiff, in answer to questions put by her counsel, testified:
“My duties in connection with actual operation in addition to keeping these records was to see that the work was done, direct it I mean. It was just as much my duty, as the other two men on the job, to signal the engineer ahead or swing him back or signal him to stop, in the ordinary way of doing business. We would couple onto cars when other cars were attached to the engine at different times; there is always a man to guide the engineer by giving him signals. According to the way you want the engineer to go, if you want him to go ahead he would signal that way (shows), and to back up (showing) that way.
“Q. Supposing the engineer was signaled to back up his engine for the purpose of coupling onto another car, was there any one to give him a signal as to when he was getting near that car so that he could slow up?
“A. Yes, sir.
“Q. How was that signal given?
“A. Well, sometimes we take both hands like that (showing) or sometimes just take one hand (indicating).
“Q. Indicating by signals of the hands the nearness of the car to be coupled to the other car to which it was to be coupled?
“A. Yes, sir.
“Q. So that he could regulate his speed and not hit it too hard ?
“A. Yes, sir.
“Q. And one of the switchmen would give those signals to the engineer?
“A. Yes, sir. * * *
“Q. It is customary and proper practice is it when an engine with cars attached, or without cars attached, backs up to couple onto another car or shunt it, for a switchman to be on the ground and signal the ■engineer?
“A. Yes, sir. That is customary and proper practice. The purpose being to guide the engineer and indicate to him the nearness of his approach to the car that he is coupling onto.”
The practice as thus explained seems to be conceded. In the absence of the conductor, the movement was in charge of the deceased. He was master of the sitúa tion. It was the duty of the engineer and fireman in handling the locomotive to be governed by his signals. They were unable to see the car to which the coupling was to be made. It was the duty of the engineer to keep on backing up until he received a signal to slow down, indicating his nearness to it. It was the duty of the deceased to give such signal. None was given. We are unable to see how the act of the engineer, in backing up without slowing down when the cars were to meet, can be said to be negligent. He had a right to expect that he would receive the signal to do so in time to act. There is no claim made that the engineer knew, or had any right to expect, that the deceased would leave the ground, after giving the signal to back up, and go up the ladder of the standing car to release the brake. If he deemed it necessary to do this, he should have done so before giving the back up signal. This signal started the locomotive and car attached to it in motion, and under the practice that motion would not necessarily lessen until a signal was given to reduce the speed. The engineer testified:
“I had an idea he might have went in to adjust the couplings or something of that kind.”
He had no “idea that he would be on top of the car,” or “that the brake had been set on that car;” he expected he would “come over on my side and give signals.”
There is proof that, as the cars came together, they “struck hard,” that there was a “loud crash,” “a louder crash than usual.” This was but the natural result of the movement as made. The engineer had a right to expect a signal to slow down when nearing the car to be coupled to. No such signal having been given, it would necessarily follow that the cars would come together with greater force than was usual. The distance being not to exceed 50 feet, a high degree of speed could not have been attained.. The weight of the locomotive and car attached to it and the car struck was such that, unless the speed was reduced to the minimum, there would be much force in the impact. Such force as compared with that usually resulting from the coupling of cars is not in itself evidence of negligence on the part of the engineer. His conduct in handling his locomotive must be viewed in the light of the signal he momentarily expected to receive informing him that the car attached to his locomotive was nearing the one standing on the switch and that he should slacken speed before reaching it. The engineer had been in the employ of the defendant in that capacity for 34 years. There is no evidence that he was not competent and careful in the discharge of his duty. We are impressed that under this record he should not be deemed guilty of an act of negligence causing the death of his fellow workman.
But few cases have been called to our attention in which a similar question was presented. In Hunt v. Railroad Co., 181 Iowa, 845 (165 N. W. 105, L. R. A. 1918B, 369), a conductor of a freight train was thrown violently to the floor of the caboose while standing therein and rendered unconscious for several hours as a result of the sudden application of the brakes in order to stop at a water tank. He testified that it was “the most violent shock” he had experienced in seven years of service. The action was brought under the Federal employers’ liability act. The court said:
“That such a stop would result in a jerking more or less severe is a matter of such common knowledge as to have come practically within the range of judicial notice. The books are full of cases where negligence has been predicated upon the jerking of a freight train, and it has been held with practical unanimity that the jerking of a freight train, even though severe and unusual, is not of itself evidence of negligence as to employees operating the same. It becomes negli gence only when the injured employee is known to be in a position of peril.”
Many cases are cited in support of the holding.
In Southern Railway Co. v. Carter, 164 Ala. 103, 108 (51 South. 147), the court said:
“Sudden start and resultant injury proven, the burden was still upon the plaintiff to show that the engineer owed a duty to the plaintiff in the situation in which they were — in other words, to show that the engineer knew, or in the exercise of reasonable care ought to have known, that the plaintiff was in a position of peril when the engine was moved. That he did not know the plaintiff’s peril is not debatable under the evidence.”
In McDermott v. Railroad Co., 56 Kan. 319 (43 Pac. 248), the facts and holding are sufficiently stated in the first paragraph of the syllabus as follows:
“In an action against a railroad company to re.cover damages on account of the death of a brakeman killed while making a flying switch, where the only negligence charged is that the engineer ran at an unnecessary, unusual and dangerous rate of speed, and the jury find specially that the engineer at the time of the accident was under the control of the deceased as to slacking up and going ahead, and that he obeyed the signals given him by the brakeman, held, that such special findings conflict with and overturn a general verdict in favor of the plaintiff.”
The declaration also charged that—
“defendant negligently and carelessly failed and omitted to furnish a sufficient and adequate crew for the operation of said business of said train.”
The undisputed proof showed that it was the practice when switching for one of the brakemen to relieve the fireman when he was temporarily absent. The deceased knew that the brakeman was so employed. He also knew that he alone was on the ground at the time he gave the signal to back up. The engineer was under his orders and not in any way chargeable with lack of prudence in obeying the order in the absence of the conductor. The usual switching crew was provided by the defendant. In our opinion no negligence as to it can be predicated upon the act of the deceased in ordering the movement of the locomotive when he alone was present.
We feel constrained to hold that defendant’s motion to direct should have been granted. The cause will he remanded, with direction to the trial court to enter -a judgment for the defendant. Defendant will have costs.
Clark, Steere, Fellows, and Wiest, JJ., concurred with Sharpe, J. | [
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McDonald, C. J.
The plaintiff is a farmer living in Muskegon county, Michigan. The defendants are husband and wife and are engaged in the real estate business in the village of Holton, county of Muskegon. In 1921, the plaintiff was living in the State of Colorado. In December of that year he went to Holton to buy a farm. He was shown several farms by the defendant Charles Oatman, and finally decided to buy the McFadden place consisting of 160 acres about four miles from Holton. Mr. McFadden lived in Florida and no one was occupying the farm at that time. It was not listed with Oatman, but he said that he could sell it to the plaintiff. The agreement, as claimed by the plaintiff, was that he was to buy the farm at McFadden’s price, providing that it should not exceed $1,600; that Oatman was to get it for him at the lowest price and on the best terms obtainable; and that with this understanding he paid Oatman $600 to be applied on the purchase price and returned to Colorado. The money was paid December 23, 1921. On the following day the defendant Carrie Oatman wired Mr. McFadden an offer of $800 for the farm, $300 of which she proposed to pay down and to give a mortgage for the balance. The offer was accepted. She received a deed and gave back the mortgage. Charles Oatman then wrote the plaintiff for an additional payment of $100 to close the deal. The money was forwarded and Oatman sent the plaintiff a contract to be executed calling for the payment of $1,600 as the purchase of the farm, acknowledging the payment of $700 thereon and providing that the balance should be paid in yearly payments of $100 with interest at six per cent. In this contract, Carrie Oatman’s name appeared as vendor. It is the plaintiff’s claim that when he signed the contract he believed that he was acquiring the farm at the lowest price for which Mr. McFadden was willing to sell it, but that because of the fraudulent representations of the defendants he was induced to pay double that amount. The plaintiff returned to Holton in December, 1922. In January, 1923, he paid the first yearly payment of $100 with interest. He says that as the real consideration for the purchase of the farm was $800, but that through the fraud of defendants it was stated in the contract to be $1,600, that it should be reformed so as to conform to the actual agreement of the parties, and that as he has paid the full purchase price he is entitled to his deed. To secure a reformation of the contract and to compel a conveyance to him without further payment, he brought this action. The defendants deny the agreement as claimed by the plaintiff. They say that he agreed to pay $1,600 and that the farm was well worth that amount; that there was no fraud, but if there was it was waived by the subsequent contract of the plaintiff; that if the agreement was as claimed by the plaintiff there was an entire change in the agreement when plaintiff accepted a contract from Carrie Oatman, and that she was not bound by her husband’s agreement to purchase the farm from McFadden. The defendant Charles Oatman says that his wife purchased the farm from McFadden without his knowledge or consent and that he did not know how much she had paid for it. The circuit judge found for the plaintiff and entered a decree granting the relief prayed for. From this decree the defendants have appealed.
The record shows beyond question that these two defendants conspired to defraud the plaintiff. When Oatman accepted a deposit of $600 from the plaintiff on the understanding that he was to get the farm for him as cheap as possible, he knew that McFadden’s price was $800, for he had been told so by Mr. Tomaris, the former custodian. To conceal the true price from the plaintiff he had his wife buy the property, take the title in her name and resell it on contract to him for $1,600. If the agreement between the plaintiff and Oatman meant anything, the plaintiff was to get the farm for $800 which the circuit judge found to be about its real value. As the circuit judge remarked after listening to the testimony, “the whole scheme was a fraud on the plaintiff and should not be allowed to stand.”
The contention that the plaintiff waived the fraud by his subsequent conduct is wholly without merit. He .acted with reasonable promptness when he learned of the defendants’ fraud. He investigated the rumors that came to him and when he learned the facts began this suit. He is not here asking for a rescission of the contract. He simply asks that he be put in the same position that he would have been in if defendants had acted on the square. In other words, he wants the defendants to perform the agreement as made. The price that the plaintiff was to pay was McFadden’s price, which was $800. The plaintiff has already paid that amount and is entitled to a deed of the farm. The defendants paid McFadden $300 and gave a mortgage for the balance, on which there is now unpaid $400 and interest. The court decreed that the plaintiff should take the property subject to this mortgage, and that the defendants should repay to him the amount that they did not turn over to McFadden, so that the purchase price to the plaintiff would be $800 according to the agreement.
We think that the circuit judge made a just and sensible disposition of the case and that the defendants should not complain because they are not allowed to profit by their fraud.
The decree is affirmed, with costs to the plaintiff.
Clark, Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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McDonald, C. J.
This case is a companion of Stanczuk v. Pfent, ante, 689, and is controlled by the opinion in that case.
Judgment is reversed and the cause remanded to the circuit court with directions that the default be set aside. The defendant will have costs.
Clark, Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Bhshnell, J.
Plaintiff Josiephene Harris sought a decree for specific performance of a claimed contract between Clarence E. Pollard, deceased, and herself, to the effect that “if she would keep house for him and cook for him, nurse and care for him in his illness,” he would leave her all his property. She claims that notwithstanding* this promise and her complete performance, Pollard made a will on April 8, 1947, prior to his death on May 11, 1947, leaving* his property to others.
In denying specific performance of the claimed contract the trial court held that it was unnecessary to determine whether the contract had been made, because from the testimony it appeared that Josiephene had failed to prove performance on her part. The court further found that, by filing a claim in the probate court against the Pollard estate for services rendered as housekeeper and cook from September 15, 1937 to November, 1945, and for services as housekeeper, cook and nurse from November, 1945, to May 11,1947, in the sum of $14,300, plaintiff Harris had elected her remedy. The court added that the facts brought the case within the rule laid down in Laird v. Laird, 115 Mich 352, and Reich v. Misch, 316 Mich 264.
In the latter ease a son who presented a claim for services rendered his father was held to have elected his remedy and was precluded from seeking specific performance of a claimed contract whereby his parent was to leave him property in return for such services.
In the instant case appellant argues that the mere starting of an action in law or a suit in equity does not constitute an election. Here, shortly after the claim was filed in the probate court and the facts concerning the contract became known to plaintiff’s counsel, an injunction was sought and obtained against any further proceedings in the probate court. Notwithstanding this factual difference, decision in Reich v. Misch, supra, is controlling here.
The decree of the trial court is affirmed, with costs to appellee.
Sharpe, C. J., and Boyles, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred. | [
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North, J.
(dissenting). Plaintiff was awarded compensation for the personal injury hereinafter noted at the rate of $20.77 per week for a short period while he was kept from his employment, and also $243 was awarded to his physician for medical treatment. Plaintiff’s employer, Michigan State-Police, and its insurer, State Accident Fund, have appealed. The sole question presented by appellants is:
“Did the plaintiff, George Trumble, meet the burden of proof that he received a personal injury arising out of and in the course of his employment with the defendant, the Michigan State Police?”
Plaintiff’s injury was to his right eye, and appellants’ contention is: “There is no showing that during the course of his employment a foreign body or anything else entered his right eye to cause it to bother him.” The issue presented necessitates a review of the rather brief testimony in this case. We shall refer to the Michigan State Police as the defendant.
Plaintiff was employed by defendant in the capacity of a caretaker or janitor in one of the State police buildings. His work consisted of cleaning, dusting, picking up papers, mopping, cleaning washstands and toilets, and washing windows. His day’s work began at 4 a.m. On October 3, 1947, plaintiff began work at the usual time, and about 6:30 or 7 o’clock that morning his right eye began bothering him. As to the condition of his eye, plaintiff’s testimony was:
“It was all right when I went to work. * * * 6 or 7 o’clock I noticed my eye smarting and bothering me. And that night, when I got home, it was just as red as blood, pretty near. * * * Well, it must have been done that morning, — it must have happened that morning. * * *
“Q. Now, when you came to Mr. Chappell (plaintiff’s foreman), what did you tell him?
“A. Well, I told him that I got something in my eye, and I says, ‘I don’t know what I am going to do with it. I got to get something to put in it,’ or something like that.”
This witness further testified that about 6 o’clock on the morning of the injury he looked in the glass and saw that his eye was getting bloodshot. Plaintiff wore glasses and on cross-examination he was asked:
“Q. You didn’t get anything out of your eye, did you?
“A. Well, not unless it came out unbeknown to me, you know. ? * * .
“Q. You are not sure, that you got anything in it, though, are you?
“A. Well, I don’t know what happened to it. Something happened to it. Whether I got acid in it, or something flew in my eye, or what — I couldn’t say for that. * * *
“Q. Did you feel a sudden stinging pain in the eye?
“A. Oh, no, it wasn’t no pain that I know of — that is, like sticking a needle in it, or anything like that.”
Relative to his having gone to first aid, plaintiff’s testimony was:
“I just went in and asked him if he had any stuff to put in my eye; I says, ‘I got something in there that is aching pretty bad,’ I says, Won’t you — ain’t you got some liniment or something?’ He says, ‘No, we don’t have nothing for that.’ * * * Well, I told him I got something in my eye. I didn’t tell him I thought so; I told him there was something in my eye. I wanted to know if he had something for it, and he says ‘No, I can’t do nothing for that.’ ”
At first aid plaintiff was told he would have to go to a doctor. Plaintiff testified he had never had a doctor for eye trouble before, that his eyes had given him no trouble prior October 3d, although he had been working at the same occupation since June prior to his injury. Plaintiff also testified: “Well, I can’t be positive whether anything, — something, splashed in my eye, or whether I got something on my finger, and whether I done that (indicating) or not.”
. Dr. W. C. Behen, an ophthalmologist, who on the third day after plaintiff’s injury treated him, as a, witness for plaintiff, testified that in giving the doctor the history of his injury plaintiff said “that he thought he had gotten some acid or other foreign body — he wasn’t quite sure what he got in his eye.”
As to the condition of plaintiff’s right eye the doctor testified:
“(Plaintiff’s) eye was quite inflamed; he had a very bad ulcer (on the cornea) which could be of three days’ duration, * * * and he had iritis, or an inflammation of the iris, which also could hook in with his history that he had gotten something into his eye three days before.”
The doctor’s further testimony in substance was to the following effect. An injury to or a small foreign body in the eye might cause an ulcer. In other words, when you find an ulcer of the eye you conclude there must have been some foreign body strike the eye — come in contact with the cornea. While it does not very often happen, an ulcer might possibly result from a systemic condition. Plaintiff’s iritis was due to the ulcerated cornea. An ulcer may result from a foreign body entering the eye in any where from 1 to 3 or 4 days. It depends upon what was carried into the eye, how virulent it was, and the resistance of the patient, and what not. And the doctor when testifying stated that in view of the history of the case and the result of his examination he “felt” there was a “causal” relation resulting in plaintiff’s eye condition; but this appears to have been on the assumption that “he (plaintiff) had gotten something in his eye 3 days before.” The doctor, who treated plaintiff from October 6, 1947, to May 1,1948, further testified that the scar tissue from the ulcer was across the area of vision in plaintiff’s right eye; and that while there was no evidence of a cataract at the time plaintiff first came to the doctor for treatment, that in the meantime and at least 6 weeks prior to hearing (June 1, 1948) the doctor discovered a cataract was developing on plaintiff’s right eye, and as a result of the condition of plain tiff’s eye the vision was “put down 20/70, but it would dim out.”
“Q. So that there is in motion now, a cataract forming?
“A. That is right.
“Q. And that in your opinion is a traumatic cataract, a result of this ulcer which you found on October 6th?
“A. Yes, sir. * * *
“Q. You didn’t remove any foreign body from his eye, did you?
“A. No, sir.”
The only witness called by defendants was plaintiff’s foreman, Marshall Chappell. He testified:
“Q. When did you first know that Mr. Trumble was claiming he had some trouble with his right eye ?
“A. Well, I disagree with Mr. Trumble. I believe that it was the first morning (instead of the second day), inasmuch as on making the rounds — that is, on our morning check-up through the buildings, Mr. Trumble approached me and asked me to look in his eye. He said, ‘I believe I have something in it.’ And I lifted the lid, looked in it, and was unable to detect anything in the eye, and at that time I advised him to see a doctor, and he told me that if it wasn’t feeling-better, that he would do so, and he would not be in. And at that time the eye was red and inflamed. But I believe it was the first morning.”
While plaintiff, who was not represented by an attorney, did not make a record which discloses in complete and exact detail just what did happen to him in the way of a 'personal injury that resulted in the eye condition, the following does appear and without contrary testimony: Plaintiff had not experienced'eye trouble before he began his work on October 3,1947, that while kt a type of work incident to which some foreign substance might have''gotten' into his eye he experienced the eye trouble which rapidly became serious, as hereinbefore noted. The inference may fairly be drawn that plaintiff’s injury arose out of and in the course of his employment, as was found both by the deputy and the commission on review. The law applicable to the instant case is well stated in the prevailing opinion in Ginsberg v. Burroughs Adding Machine Co., 204 Mich 130, 137:
“The burden of establishing a claim for compensation rests on those seeking the award. They are not required to establish their case by positive, direct evidence; in many cases that would be impossible; they may prove their case by circumstantial evidence as other cases are established. * * * It is the province of the board [commission] to draw the legitimate inferences from the established facts and to weigh the probabilities from such established facts. * * * If an inference favorable to the applicant can only be arrived at by conjecture or speculation the applicant may not recover. So if there are two or more inferences equally consistent with the facts, arising out of the established facts, the applicant must fail.”
This present record brings plaintiff’s case within the requirements of McCoy v. Michigan Screw Co., 180 Mich 454 (LRA1916A 323, 5 NCCA 455), wherein we held:
“The burden of furnishing evidence from which the inference can be legitimately drawn that the injury arose ‘out of and in the course of his employment’ rests upon the claimant.”
Under this record we would not be justified in setting aside the - award for the reason assigned in doing so in Riley v. Kohlenberg, 316 Mich 144, from which we quote the following:
“In' awarding compensation to a plaintiff, the department may not indulge in the assumption of a mere possibility in tbe nature of a guess as to whether plaintiff is entitled to compensation. Ginsberg v. Burroughs Adding Machine Co., 204 Mich 130, 137; Marman v. Detroit Edison Co., 268 Mich 166.”
The award entered by the commission should be affirmed, but without costs since appellee has not filed a brief.
Bttshnell and Reid, JJ., concurred with North, J.
Boyles, J.
Plaintiff fails to establish that his disablement arose out of his employment. For that reason I do not concur in affirming the award.
Plaintiff was employed as a janitor at the State Police post in East Lansing. On October 3, 1947, at 4 o’clock in tfi,e morning he started his work as usual. His work was “to clean and dust and mop, clean the toilets, such as that — -clean up the place generally.” He testified that nothing “out of the way” happened to his eye after he went to work:
“A. Yes. I was all right. I didn’t notice anything out of the way, and I don’t know, about 6:30 or 7 o’clock, I noticed my eye beginning to bother me. * # #
“A. So I kind of touched it up that day, and rubbed it, maybe, a little bit, and the next day I came to work and I saw a fellow out in the outside, and he says, ‘What’s the matter with your eyes?’”
He continued to work until October 6th. His eye “kind of smarted,” and grew worse. His work had been “to pick up the papers, and such as that,” then he went around to sweep and dust, then “to clean the drinking fountains and the toilets, and such as that.” There was no testimony that in cleaning the toilets he used any acid or caustic or other material which should be kept away from contact with the eyes. "When ashed about cleaning toilets, he testified:
“Q. Had you done any toilet cleaning that morning?
“A. Oh, yes, we have three—
“Q. I mean, had you done it before this started bothering your eye?
“A. Well, I don’t think that morning, before I noticed it bothering me.”
There is no question but that plaintiff first noticed that something was wrong with his eye, during the course of his employment. There is an utter absence of any proof that the “very bad nicer” on the cornea of his eye arose out of his employment. His witness, the ophthalmologist who was allowed $243 by the award for medical fees, testified in substance that if plaintiff had gotten something into his eye, that might have caused the ulcer. But there was no testimony that any foreign substance had gotten into plaintiff’s eye while he was at work. In fact, plaintiff’s own testimony is to the contrary. Plaintiff himself, when asked repeatedly whether anything “splashed” into his eye, whether any particular thing “happened” to his eye, would only say that “it just started to smart that morning,” and when squarely asked whether he was sure he got anything in his eye, he said “Well, I don’t know what happened to it.” Furthermore, the building superintendent testified that' on ’ the morning of October 3d plaintiff approached him and asked him to look in plaintiff’s eye, that he lifted the lid, looked in the eye, and “was unable to detect anything in the eye.” The ophthalmologist, who was plaintiff’s witness, testified that “any injury to the eye might cause an ulcer,” and that it might possibly come from a systemic condition.
An applicant for compensation must in some manner, beyond mere speculation, establish that his disablement arose out of his employment. Merely to show that it was discovered while in the course of his employment is not sufficient. This is fully supported by the cases from which Mr. Justice North quotes as follows:
“The burden of establishing a claim for compensation rests on those seeking the award. * * * If an inference favorable to the applicant can only be arrived at by conjecture or speculation the applicant may not recover. So if there are two or more inferences equally consistent with the facts, arising out of the established facts, the applicant must fail.” Ginsberg v. Burroughs Adding Machine Co., 204 Mich 130, 137.
“The burden of furnishing evidence from which the inference can be legitimately drawn that the injury arose ‘out of and in the course of his employment’ rests upon the claimant.” McCoy v. Michigan Screw Co., 180 Mich 454 (LRA1916A, 323, 5 NCCA 455).
“In awarding compensation to a plaintiff, the department * may not indulge-in the assumption of a mere possibility in the nature of a guess as to whether plaintiff is entitled to compensation. Ginsberg v. Burroughs Adding Machine Co., 204 Mich 130, 137; Marman v. Detroit Edison Co., 268 Mich 166.” Riley v. Kohlenberg, 316 Mich 144.
Beginning with the enactment of the present workmen’s compensation law in 1912, it has been consistently held that an injury, to be compensable, must “arise out of” as well as “in the course of” the employment. That was required by section 1 of part 2 of the act as originally passed in 1912. The same requirement remains unchanged through many subsequent amendments to the law.*
In Rayner v. Sligh Furniture Co., 180 Mich 168 (LRA1916A 22, Ann Cas 1916A 386, 4 NCCA 851), concerning an accident which occurred about 2 months after the effective date of the act in 1912, this Court said:
“The words ‘out of and in the course of the employment’ are used conjunctively, not disjunctively; and upon ordinary principles of construction are not to be read as meaning ‘out of,’ that is to say, ‘in the course of.’ The former words must mean something-different from the latter words. The workman must satisfy both the one and the other. The words ‘out of’ point, I think, to the origin or cause of the accident ; the words ‘in the course of’ to the time, place, and circumstances under which the accident takes place.”
In Hills v. Blair, 182 Mich 20 (7 NCCA 409), discussing an accidental death which occurred about 10 weeks after the effective date of the act, the Court said:
“Under the provisions of this act, only that employee is entitled to compensation who ‘receives personal injuries arising out of and in the course of his employment.’ It is to be borne in mind that the act does not provide insurance for the employed workman to compensate any other kind of accident or injury which may befall him. The language of the Michigan compensation law is adopted from the English and Scotch acts on the same subject, and, in harmony with their interpretations, has been construed by this Court, in Rayner v. Sligh Furniture Co., 180 Mich 168 (LRA1916A 22, Ann Cas 1916A 386, 4 NCCA 851), as meaning that the words ‘out of’ refer to the origin, or cause of the accident, and the words ‘in the course of’ to the time, place, and circumstances under which it occurred.”
In Hopkins v. Michigan Sugar Co., 184 Mich 87 (LRA1916A 310), the Court (syllabus) held:
“To justify an award of compensation to an injured employee the accident must have arisen out of' as well as in the course of his employment; the two are separate questions to be determined by different tests: ‘Out of’ points to the cause or source of the-accident, while ‘in the course of’ relates to time, place, and circumstance.”
The above statements have been repeated, in various ways, in many subsequent decisions of this Court. Recently Mr. Justice Bushnell, writing for the Court in Appleford v. Kimmel, 297 Mich 8, quoted with approval as follows:
“It is well settled that, to justify an award, the-accident must have arisen ‘out of’ as well as ‘in the course of’ the employment, and the two are separate questions to be determined by different tests, tor-eases often arise where both requirements are not satisfied. An employee may suffer an accident while engaged at his work or in the course of his employment which in no sense is attributable to the nature-of or risks involved in such employment, and therefore cannot be said to arise out of it. An accident arising out of an employment almost necessarily occurs in the course of it, but the converse does not follow. 1 Bradbury on Workmen’s Compensation, p 398. ‘Out of’ points to the cause or source of the-accident, while ‘in the course of’ relates to time, place, and circumstances. Fitzgerald v. Clarke & Son, 2 KB (1908) 796.
In Simpson v. Lee & Cady, 294 Mich 460, Mr. Justice Butzel, writing for the Court, said:
“The compensation law is to be construed liberally to provide indemnity for accidents peculiarly incidental to employment, but it was not intended to be health, accident and old age insurance and spread general protection over risks common to all and not arising out of and in the course of employment.”
To uphold the award in this case, we must find in the record some evidence that the ulcer on the cornea of plaintiff’s eye was caused by some foreign substance that got into the eye after 4 a.m. and before 6:30 or 7 a.m., on the morning of October 3, 1947, while plaintiff was at work for the defendant State Police. To establish his right to compensation, plaintiff must show something more than the mere fact of his employment during that time as a janitor and the discovery, during the course of his employment, that something was wrong with his eye, and 3 days later that an ulcer developed on the cornea of one of his eyes.
The case is remanded for entry of an order denying compensation.
Sharpe, C. J., and Dethmers, Butzel, and Carr, JJ., concurred with Boyles, J.
The powers and duties of the department of labor and industry, here referred to, are now vested in the workmen’s compensation commission, see CL 1948, § 408.6 (Stat Ann 1947 Cum Supp § 17.6 [6]). — Reporter.
PA 1912 (1st Ex Sess), No 10, pt 2, § 1, effective September 1, 1912, as amended (CL 1948, § 412.1 [Stat Ann 1947 Cum Supp § 17.151]). | [
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North, J.
This suit arises from the collision between 2 automobiles at the intersection of the north- and-south concrete trunk-line highway M-66 and an east-and-west gravel highway, about 2 miles south of Ionia. Trial in the circuit court without a jury resulted in a judgment for plaintiff. Defendant has appealed.
Plaintiff’s vehicle was proceeding north on M-66. Defendant was travelling east on the intersecting highway. The accident occurred in the daytime, and the road and visibility conditions were normal. Defendant’s decedent, George Comstock, to whom we refer as defendant, was killed in the accident. He was 85 years of age, had formerly been á rural mail carrier serving a route over these same highways and, hence, was familiar with the intersection. As to his negligence, the record supports the following from the opinion of the circuit judge:
“Under the undisputed facts Mr. Comstock approached M-66, a State trunk-line highway, from the west on a side road which had a gravel surface. As he approached the trunk-line highway he slowed down almost to a stop. I am satisfied that such slowing down gave every indication that he was go ing to stop and that the driver of the ambulance had every reason to believe Mr. Comstock was going to stop. Instead of stopping Mr. Comstock proceeded into the intersection and came to almost a complete stop in about the center thereof. It is obvious that Mr. Comstock either made no observations as to traffic on the State trunk line or ignored any traffic he did observe. Mr. Comstock was familiar with the roads in question. Clearly Mr. Com-stock was guilty of negligence and I find that such negligence was the proximate cause of the accident.”
On the argument in this Court plaintiff’s counsel admitted there was no stop sign on the crossroad on which defendant approached the intersection. It is urged in behalf of defendant that since there was no such sign defendant was not bound as a matter of law to stop before entering the intersection. Even so, still under this record defendant was clearly guilty of negligence. Plaintiff’s vehicle was at the right of defendant’s as the 2 approached the intersection and had the right of way. CL 1948, § 256.320 (Stat Ann § 9.1580). "When plaintiff’s car was approximately 300 feet south of the intersection and plainly visible to defendant it was travelling about 70 miles per hour, at which rate it would reach the intersection in approximately 3 seconds. Defendant was then 2 or 3 car lengths (30 to 40 feet) west of the intersection, had slowed down to 5 to 10 miles per hour, and “came to almost a complete stop in about the center” of the intersection. The trial court’s finding that defendant was guilty of negligence which was the proximate cause of this collision is amply supported by the record.
The question of contributory negligence chargeable to plaintiff presents a closer factual issue. Plaintiff’s automobile, which he used as an ambulance, was a Buick sedan type with the standard or usual chassis, but with the right-hand door rebuilt so a patient could be placed inside in a reclining position. At the time of the accident this vehicle was being driven by plaintiff’s adult son. He was accompanied by his father and a patient who, under a doctor’s orders, was being conveyed in plaintiff’s ambulance to a hospital in Ionia. This vehicle was equipped with a siren but the siren was not sounded on the occasion of this accident. The driver of plaintiff’s automobile, when travelling about 70 miles per hour and approximately 300 feet from the intersection, first saw defendant’s car 2 or 3 car lengths west of the pavement and proceeding at 5 to 10 miles per hour. Assuming defendant would stop, plaintiff’s driver did not apply his brakes immediately but he did release the accelerator and somewhat slackened his speed. He testified if he had applied his brakes: “It would have shaken us up pretty well, but I imagine we might have been able to” stop in a distance of 300 feet. He further testified that when “probably” 100 feet from the intersection and when his car was travelling approximately 60 miles per hour he first realized defendant’s car was coming upon the pavement, and “I put on the brakes and sounded the horn, immediately.” Plaintiff’s car left skid marks on the pavement from a point approximately 100 feet south of the intersection. In an effort to avoid the collision after plaintiff’s driver saw he could not pass in front of the other car, he veered plaintiff’s car to the left. When the impact occurred the front of defendant’s car was east of the center line of the pavement and the rear of his car was about 3 to á feet east of the westerly edge of the pavement, and defendant’s car was moving less than 5 miles per hour. One witness testified defendant had come to a full stop. At the point of accident the pavement is 20 feet wide with a 6-foot shoulder. The right front of' plaintiff’s vehicle collided with the right rear of defendant’s car. Plain tiff recovered $1,188.78 for damages to Ms ambulance.
In reacMng. the conclusion that plaintiff’s driver was not guilty of contributory negligence the trial judge in his opinion stated:
“Was the driving at 70 miles per hour negligence? Such a speed was not unlawful unless the condition of the road and the condition of the traffic made driving at such speed unsafe. When the ambulance was 300 feet from the intersection the road was dry, clear of traffic and visibility was good. The only car in sight was the Comstock car which the ambulance driver saw slowing down as if about to stop at the intersection. At that point I can’t see why the ordinary prudent man would not consider such a speed safe. Defendant made much of the fact that the ambulance could have been stopped had the driver started to stop at a distance of 300 feet. Had the Comstock car not slowed down as though it were going to stop that’s just what the ambulance driver could have done and had the Comstock car not so slowed down but had proceeded to cross the trunk line then the ambulance driver would have been guilty of contributory negligence had he failed to stop. The situation then would have brought the case within the case of Block v. Peterson, 284 Mich 88. In that case both cars were approaching the intersection at about the same speed when each was about 120 feet from the intersection. From that point, plaintiff, in that case, paid no more attention to defendant and assumed that he would stop. In the case at bar Mr. Comstock slowed down as if about to .stop and I am satisfied the ambulance driver relied on such indication. When, instead of stopping, the Comstock car proceeded into the intersection the ambulance driver was confronted suddenly with an impossible situation. The cause of this collision was the fact that the ambulance driver was deceived by the fact that the Comstock car appeared about to stop at the trunk line. If the ambulance driver is' to be chargeable with negligence in this case then any advantage of rapid transit on trunk lines will be lost as drivers thereon will have to stop at every intersection and be sure what any car at or near the intersection is going to do.
“As pointed out in Stabler v. Copeland, 304 Mich 1, 7, every intersection case must stand on its own facts. In those intersection cases where the driver on the superior highway has been held guilty of negligence the court has either found that he failed to make proper observation of approaching traffic on inferior roads or that he neglected to take proper precautions to avoid a collision' when it was obvious that the driver on the inferior highway was not going to yield the right of way. In the case at bar the ambulance driver observed Mr. Comstock’s car when he was a distance of 300 feet from the intersection and continued to observe him until the time of the impact. The defendant’s attorney on cross-examination of the ambulance driver established that he could have stopped had he applied his brakes at the point of observation, 300 feet from the intersection. Hence, it was not the failure of the ambulance driver to make proper observation nor the speed of the ambulance which in any way contributed to the accident. It was anything but obvious that Mr. Comstock was going to enter the intersection. His slowing to almost a stop had exactly the contrary indication. Consequently it was not the ignoring of an obvious entry onto the trunk-line highway by the ambulance driver'which contributed to the accident. As hereinbefore indicated it was the slowing down of the Comstock car indicating that it would stop which was the cause of this accident. Had the Comstock car driven into the intersection without first slowing down I am satisfied that the ambulance driver could and would have prevented" the accident.”
We cannot find from this record that the testimony on the issue of contributory negligence pre-: ponderates in the opposite direction from the finding of the trial judge. The judgment entered in the circuit court is affirmed. Costs to appellee.
Sharpe, C. J., and Bushnell, Boyles, Reid, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Carr, J.
Plaintiff brought suit in circuit court to recover damages for a personal injury claimed to have been sustained by him while in the employ of the defendant railroad company. The first count of the declaration was based on the provisions of the Federal employers’ liability act, 45 USCA, § 51 et seq., plaintiff alleging that at the time of his injury, on or about December 17, 1946, he was employed in interstate commerce. Plaintiff set forth in his pleading that the weather was extremely cold, that he was not dressed in clothing of sufficient warmth under the circumstances, that defendant through its agents and employees knew of such fact, that it was the duty of the defendant to provide a place for plaintiff to warm himself at intervals, that he and other employees of defendant working with him should have been permitted to maintain a fire for the purpose of warming their feet, that plaintiff and said other employees were prevented from so doing, that plaintiff should not have been required to expose himself to the danger of injury from the weather, and that defendant failed in its duty to warn him of the danger. It is claimed that as a result of such negligence plaintiff’s feet were frozen. The allegations of negligence on the part of the defendant were repeated in a second count, which, however, averred that plaintiff at the time of his injury was working in intrastate commerce. In such count the right of recovery was obviously predicated on the law of Michigan, but no reference to any specific statute of the State was made therein.
Defendant filed answer to both counts of the declaration, denying the allegations of negligence therein set forth and asserting that, if plaintiff sustained injuries as alleged in his pleading, such injuries resulted from his own conduct without fault on the part of defendant, its agents or servants. Defendant also, by way of further answer to each count, pleaded assumption of risk in the following language :
“Making further answer to said declaration, plaintiff asserts and alleges the fact to be that before and at the time of the injury complained of, plaintiff had all knowledge of the dangers of the employment in which he was engaged; that the injury sustained by him, if any, was caused by a risk of said occupation which was obvious and which he well knew, and that plaintiff had assumed said risk.”
Plaintiff moved to strike the defense as pleaded, claiming that it was not proper as to either count of the declaration. The trial court granted the motion insofar as it related to the defense to the first count, but declined to take like action with reference to the answer to the second count because of the failure of plaintiff to allege in such count statutory provisions of this State forbidding the interposition of such defense to plaintiff’s action. On leave granted, defendant has appealed from that portion of the order of the trial court striking the language above quoted from defendant’s answer to the first count. Plaintiff has not sought to take a cross appeal from the balance of the order. The question before us is whether in a suit for damages against an employer for personal injuries resulting from negligence on the part of such employer, or his agents, servants and employees, based on the Federal employers’ liability act, assumption of risk may be pleaded as a defense.
The trial judge based his conclusion on the language of the 1939 amendment to the Federal statute (August 11, 1939), chap 685, 53 Stat 1404 (45 USCA, § 54). Said section in its amended form reads as follows, the change therein being indicated by the language italicized:
“That in any action brought against any common carrier under or by virtue of any of the provisions of this chapter to recover damages for injuries to, or the death of, any of its employees, such employee shall not be held to have assumed the risks of his employment in any case to here such injury or death resulted in whole or in part from the negligence of any of the officers, agents, or employees of such carrier; and no employee shall be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.”
The amendment in question was discussed and construed by the supreme court of the United States in Tiller v. Atlantic Coast Line Railroad Co., 318 US 54 (63 S Ct 444, 87 L ed 610, 143 ALR 967). The opinion of the court pointed out that the circuit court of appeals, in affirming a judgment for the defendant, had undertaken to distinguish between “assumption of risk as a defense by employers against the consequence of their own negligence, and assumption of risk as negating any conclusion that negligence existed at all.” In reversing the case, it was said:
“We find it unnecessary to consider whether there is any merit in such a conceptual distinction between aspects of assumption of risk which seem functionally so identical, and hence we need not pause over the cases cited by the court below, all decided before the 1939 amendment, which treat assumption of risk sometimes as a defense to negligence, sometimes as the equivalent of nonnegligence. We hold that every vestige of the doctrine of assumption of risk was obliterated from the law by the 1939 amendment, and that congress, by abolishing the defense of assumption of risk in that statute, did not mean to leave open the identical defense for the master by changing its name to ‘nonnegligence.’ As this court said in facing the hazy margin between negligence and assumption of risk as involved in the safety appliance act of 1893, ‘Unless great care be taken, the servant’s rights will be sacrificed by simply charging him with assumption of the risk under another name;’ and no such result can be permited here.”
After discussing prior decisions involving the assumption of risk doctrine, the court said futher:
“It was this maze of law which congress swept into discard with the adoption of the 1939 amendment to the employers’ liability act, releasing the employee from the burden of assumption of risk by whatever name it was called. The result is an act which requires cases tried under the Federal act to be handled as though no doctrine of assumption of risk had ever existed. * * *
“The doctrine of assumption of risk cannot be ‘abolished in toto’ and still remain in partial existance as the court below suggests. The theory that a servant is completely barred from recovery for injury resulting from his master’s negligence, which legislatures have sought to eliminate in all its various forms of contributory negligence, the fellow-servant rule, and assumption of risk, must not, contrary to the will of congress, be allowed recrudescence under any other label in the common-law lexicon. The act of 1908 and the amendment of 1939 abolish the post-Priestley v. Fowler defenses and authorize comparison of negligence instead of barring the employee from all recovery because of contributory negligence. They leave for practical purposes only the question of whether the carrier was negligent and whether that negligence was the proximate cause of the injury.”
In his concurring opinion, Mr. Justice Frankfurter referred to different meanings attached to the phrase “assumption of risk,” pointing out that in certain situations it had been regarded as a defense enabling a negligent employer to defeat recovery, and that under other circumstances the expression had been used simply to convey the idea that the employer was not at fault and therefore not liable. He concluded that, under the specific provisions of the statute, assumption of risk is no defense if negligence is established, but that congress had left undisturbed the other meaning of the expression, namely “that an employee injured as a consequence of being exposed to a risk which the employer in the exercise of due care could not avoid is not entitled to recover, since the employer was not negligent.”
Appellant argues that under the language of Mr. Justice Frankfurter it should be permitted to plead assumption of risk by way of defense to plaintiff’s' cause of action based on the Federal statute. This implies, when considered in the light of said opinion, that such a plea is in effect one of nonnegligence merely. However, it was not interposed as such in the instant case. It was stated specifically as a “further answer” to plaintiff’s declaration, and its lan guage clearly implies an assertion of nonliability on the part of the employer because of plaintiff’s knowledge of the risks incident to the weather conditions and the alleged assumption of the danger of injury therefrom, without reference to negligence on the part of defendant or its employees. Such a plea may not properly be construed as merely a denial of liability because of lack of negligence on the part of the employer or his agents. As before noted, the answer to the declaration categorically denied all charges of negligence on defendant’s part.
Further amplifying its position with reference to the plea, appellant argues that notwithstanding the sweeping language of the United States supreme court in the Tiller Case, supra, an employee seeking to recover under the Federal statute here involved must be held to assume risks of injury arising from danger common to mankind in general, “such as the weather or an act of God.” Clearly the statute does not in terms recognize the suggested classification, nor is there any basis therefor under the decision of the United States supreme court in the Tiller Case. Such a theory is inconsistent with the statement of Mr. Justice Black, in speaking for the majority of the court in that case, that “every vestige of the doctrine of assumption of risk was obliterated from the law by the 1939 amendment, and that congress, by abolishing the defense of assumption of risk in that statute, did not mean to leave open the identical defense for the master by changing its name to ‘non-negligence.’ ” It is apparent that appellant’s argument, based on its interpretation of Mr. Justice Frankfurter’s opinion, is inconsistent with the majority interpretation of the 1939 amendment, as set forth in the language quoted.
In Roberts v. United Fisheries Vessels Co., 141 F2d 288, the circuit court of appeals of the first circuit affirmed a judgment in favor of the defendant in an action brought under section 33 of the merchant marine act of 1920 (41 Stat 1007 [46 USCA, § 688]), commonly referred to as the Jones act. In that case plaintiff’s intestates were seamen on a schooner owned and operated by defendant. The boat was lost in a storm and plaintiff’s intestates could not be found after a search for them. The trial judge in submitting the matter to the jury charged in substance that an employee assumes risks obvious and well known in the type of occupation in question, but further stated that “he, of course, does not assume that anyone is going to be negligent or anyone is going to disregard the duties that are owed to him.” The appellate court, in affirming the decision, pointed out that under the amendment to the Federal employers’ liability act assumption of risk is not a defense, but that the change in the statute did not result in imposing liability on the employer in the absence of negligence. Apparently the charge of the trial court, to which appellant in the instant case directs attention, was considered by the court of appeals as relating to the controlling issue in the case, that is, whether defendant had observed the duties owing by it for the safety of plaintiff’s in-testates. It was specifically declared that:
“The presence or absence of negligence governs the verdict. If there is no negligence the plaintiff cannot recover. If the defendant is negligent he cannot avoid the effect of it by pleading assumption of risk. Such a defense is absolutely ‘out of the window’ since the statute and since the decision in Tiller v. Atlantic Coast Line Co., 318 US 54 (63 S Ct 444, 453, 87 L ed 610, 143 ALR 967). But, as pointed out by Mr. Justice Frankfurter in his concurring opinion in the Tiller Case, congress ‘has left undisturbed the other meaning of “assumption of risk,” namely, that an employee injured as a consequence of being exposed to a risk which the employer in the exercise of due care could not avoid, is not entitled to recover, since the employer was not negligent.’ ”
Certiorari in this case was denied by the United States supreme court. Roberts v. United Fisheries Vessels Co., 323 US 753 (65 S Ct 81, 89 L ed 603). Appellant implies that because of such denial the holding in the Tiller Case should be regarded as modified, at least to some extent. We do not think such claim well founded. As pointed out in the opinion in the Roberts Case, the controlling issue was whether the defendant was negligent. It having been determined that defendant had not failed in the observance of any duty owing by it for the safety of plaintiff’s intestates, recovery was denied.
Appellant argues that under the holding of the trial court in the case at bar the Federal employers’ liability act becomes in effect merely a compensation statute. As a legal proposition such claim disregards the fact that under the statute, as repeatedly construed by the supreme court of the United States, there can be no recovery unless the injuries sustained by the employee result, at least in part, from negligence on the part of the employer. The latter is not an insurer. Ellis v. Union Pacific Railroad Co., 329 US 649, 653 (67 S Ct 598, 600, 91 L ed 572); Wilherson v. McCarthy, 336 US 53 (69 S Ct 413, 93 L ed 497); Fleming v. Kellett (CCA), 167 F2d 265.
The precise question involved in the case at bar was before the supreme court of North Carolina in Medlin v. Powell, 229 NC 323 (49 SE2d 618). There the defendant, after denying allegations of plaintiff’s declaration charging negligence, pleaded also assumption of risk in bar of recovery. Plaintiff’s motion to strike the plea was granted. In affirming the action, the court referred to the Tiller Case, supra, and held that, if assumption of risk is not a defense under the statute, it would be improper to permit it to be so pleaded. The court quoted with approval from Gray v. Pennsylvania R. Co., 71 F Supp 683, 684, as follows:
“ ‘In order to recover, plaintiff must prove that his injuries resulted, at least in part, from the negligence of one or more of defendant’s employees. If he makes such proof, the act provides that assumption of risk is no defense. If he fails to make such proof, he will be nonsuited and whether or not he assumed the risk of his employment is immaterial. Therefore, this defense is insufficient in law and must be stricken.’ ”
In Jacobson v. Chicago & Northivestern Railway Company, 221 Minn 454 (22 NW2d 455), it was said:
“In determining whether plaintiff was guilty of contributory negligence and whether, as defendant claims, his contributory negligence was the sole proximate cause of the accident, it is our plain duty to lay out of mind any question of whether he was guilty of assumption of risk, because that defense was entirely obliterated by the 1939 amendment of the act. Crawford v. Railway Co., 220 Minn 225 (19 NW2d 384). The defense of assumption of risk is not to be let in under the label of contributory negligence. Tiller v. Atlantic Coast Line R. Co., 318 US 54 (63 S Ct 444, 87 L ed 610,143 ALR 967).”
See, also, Lilly v. Grand Trunk Western Railroad Co., 317 US 481, 491 (63 S Ct 347, 87 L ed 411); Pratt v. Louisiana & A. Railway Co. (CCA), 135 F2d 692; Eckenrode v. Pennsylvania R. Co., 71 F Supp 764 (aff’d, 164 F2d 996, and 335 US 329 [69 S Ct 91, 93 L ed 41]); Larsen v. Chicago & N. W. R. Co., 171 F2d 841; Perrett v. Southern Pac. Co., 73 Cal App2d 30 (165 P2d 751); Tennessee Central R. Co. v. Shacklett, 24 Tenn App 563 (147 SW2d 1054); Howard v. Baltimore & Ohio Chicago Terminal Railroad Company, 327 Ill App 83 (63 NE2d 774) (certiorari denied, 328 US 867 [66 S Ct 1377, 90 L ed 1637]).
Under the 1939 amendment to the Federal employers’ liability act defendant in the instant case is not entitled to rely on the defense of assumption of risk. Its answer specifically denies the various acts of negligence charged against it in plaintiff’s declaration. The paragraph stricken by the order of the trial court may not properly be regarded as merely a plea of nonnegligence. To permit it to be injected into the case would result in confusion and uncertainty. The order from which this appeal has been taken does not deprive defendant of any right or privilege to which it is entitled. Under the holding of the United States supreme court in the Tiller Case, supra, actions under the Federal statute must be handled “as though no doctrine of assumption of risk had ever existed.” It follows that in such a case a plea of the character here in question is not permissible.
The order of the trial court is affirmed, with costs to plaintiff, and the case is remanded to the circuit court for further proceedings.
Sharpe, C. J., and Bushnell, Boyles, Reed, North, Dethmers, and Butzel, JJ., concurred.
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North, J.
Plaintiff, while in the employment of the defendant Wolverine Bolt Company, sustained an injury arising out of such employment which resulted in the loss of the major portion of the 4 fingers, of her right hand. Plaintiff was paid compensation at the rate of specific awards for each of the 4 fingers amputated, totalling 100 weeks at $21 per week. The 100 weeks having terminated, plaintiff filed an application for hearing and adjustment of her present claim dated December 26, 1947, and an amended application dated January 5, 1948. In her amended application plaintiff describes the nature of her disability as follows:
“Crushing injury to right hand resulting in amputation of 4 fingers with sequelae, and injury to right shoulder. Plaintiff claims loss of industrial use of right hand and/or general disability. (Compensation has been paid.)”
The deputy commissioner found plaintiff had received the compensation to which she was entitled in full and concluded: “Hence, her claim for compensation in addition to that paid for her specific losses is denied.” On review before the commission the ruling of the deputy was reversed and it was ordered that plaintiff was “entitled to compensation for the loss of her right hand at the rate of $21 per week from October 18, 1945 for 200 weeks with the defendant being given credit for the 100 weeks of compensation previously paid.” The employer and the carrier of its risk have appealed.
Contrary to plaintiff’s claim, the commission on review found as a fact that she was not suffering from any disabling condition except the loss of the 4 fingers of her right hand. In its opinion the commission stated:
“The (deputy) commissioner entered an award finding that the plaintiff had not suffered the statu tory loss of a hand. * * * The specific question before us is whether or not the plaintiff is entitled to compensation for the specific loss of her right hand. * * * It will be noted that there are no remaining serviceable portions of the amputated fingers. Such grip as there may be between the thumb and the palm of the hand would be of insignificant value in industry. The stump of the index finger is tender, further restricting the use of the hand. * * * We, therefore, find that the plaintiff has lost the industrial use of her right hand as the result of her amputations of October 18, 1945. * * * The fact that the amputations do not involve any portion of the hand beyond the 4 fingers does not warrant an opposite conclusion.”
The sole question presented is whether the commission was justified, under the circumstances of this case, in awarding compensation to plaintiff for the loss of her right hand notwithstanding she had .already been paid in full the specific award for the loss of the 4 fingers of that hand.
The record is devoid of testimony tending to prove that plaintiff has suffered any different or greater loss than normally results from the amputation of 4 fingers of a hand. Notwithstanding plaintiff claimed that the amputation of her fingers resulted in disabling “sequelae” and “general disability,” the commission found none except disability which normally follows such amputations. Lovalo v. Michigan Stamping Co., 202 Mich 85, cited by and relied upon by the commission in making its award involved an entirely different injury than in the instant case. Lovalo not only lost 4 fingers but also the major portion of his hand; and it was because he lost the major portion of his hand in addition to the loss of the fingers that he was awarded compensation for the loss of his hand.
The right to compensation and the amount thereof for specific injuries are purely statutory. To award plaintiff compensation for loss of a hand under this record would be in total disregard of the controlling statute. See CL 1929, § 8426, as amended by PA 1943, No 245 (Stat Ann 1947 Cum Supp § 17.160). As a matter of law the commission’s award to plaintiff for the loss of a hand was erroneous, because there was no testimony that plaintiff’s injury was other than the loss of 4 fingers of her right hand which resulted in no more than the normal impairment of industrial use which must always follow such amputations, or at least naturally and commonly results.
The award entered by the commission is vacated and the case remanded to the commission for the entry of an order denying plaintiff’s petition for further compensation. Defendants may have costs of this appeal.
Sharpe, C. J., and Bushnell, Boyles, Reid, Dethmers, Butzel, and Carr, JJ., concurred.
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Swainson, J.
These cases have been consolidated because both involve the issue of the liability of the Secretary of State under the Motor Vehicle Accident Claims Act (MCLA 257.1101 et seq.; MSA 9.2801 et seq.).
On June 15, 1966, plaintiffs Adrian Howell, Martha Mae Howell, and Peggy Howell (then age eight), were injured when the automobile owned by Lillian Lazaruk crossed the centerline of Ecorse Road, Wayne County, and struck the left side of the Howell vehicle. Plaintiffs sustained serious and permanent injuries. Another passenger in the Howell automobile, Barbara Burgy, was also seriously injured, and Ella Burgy, her mother, was killed.
The Wayne County Sheriff’s Department was called to the scene of the accident and after investigation made an accident report on a form prescribed by the Michigan State Police. At the time of the accident, defendant was uninsured; however, she had paid the statutory fee to the Secretary of State in accordance with MCLA 257.1103; MSA 9.2803. The estate of Ella Burgy filed notice of intent to claim against the Motor Vehicle Accident Claims Fund with the Secretary of State on or about February 20, 1967. Attached to the notice was a photostat copy of the accident report. The Motor Vehicle Accident Claims Fund by letter dated February 23, 1967, directed the Great Lakes Claims Service to investigate the facts surrounding the accident.
On March 11, 1968, the Howells filed application with the Secretary of State seeking payment for their injuries sustained in the accident. Their claims were denied because they had failed to file the requisite notice of intent to file claim within one year (MCLA 257.1118; MSA 9.2818).
On January 30, 1969, the Howells brought action in Wayne Circuit Court against Lillian Lazaruk, copies of the summons and complaint being served on the Secretary of State and defendant Lazaruk. When no answer or other pleading was received, except for another letter from the Secretary of State advising that the claim was barred because of the late notice, a default was filed and copies were served on defendant and the Secretary of State.
On June 2, 1969, testimony was taken and default judgment was entered on June 12, 1969; and, on June 30, 1969, a true copy of such default judgment was sent to the Motor Vehicle Accident Claims Fund.
Plaintiffs then filed petition for order to show cause why the Motor Vehicle Accident Claims Fund should not be required to pay plaintiffs, and hearing was had thereon on June 5, 1970. The court, upon being informed that the case of Lisee v Secretary of State was pending in the Court of Appeals, ruled that it would take the petition under advisement pending decision by the Court of Appeals in the Lisee case.
Plaintiffs filed motion to intervene in the Court of Appeals in the Lisee case, which motion was granted July 22, 1970. They thereafter-filed motions for leave to appeal and to consolidate with Lisee v Secretary of State. These motions were granted by the Court of Appeals on September 24, 1970.
On August 27, 1966, Robert Frederick Lisee, a minor, was involved in an accident with an automobile owned by Larry Eischer and driven by Donald Bryce. Lisee sustained serious and permanent injuries. Both Eischer and Bryce were uninsured. Notice of intent to claim against the Fund was made on September 15, 1967. The claims supervisor of the Motor Vehicle Accident Claims Fund replied that the claim would not be honored because of failure to file the notice within one year of the accident. On January 8, 1968, plaintiffs filed suit against Eischer and Bryce. Summons and complaint were served on the Secretary of State, with request that defendants Eischer and Bryce be served pursuant to MCLA 257.1105; MSA 9.2805. The director of the Motor Vehicle Accident Claims Fund returned the summons and complaint to plaintiffs’ attorney together with a letter which read as follows:
"We are returning herewith your correspondence dated January 9, 1968, addressed to the Honorable James M. Hare. We have not undertaken to serve the defendants, since the claim is barred by Section 18 of the Act creating the Fund.”
Following a series of letters between plaintiffs’ attorney and the Fund and its attorneys, wherein the Fund adhered to its earlier position, plaintiffs proceeded to make personal service on each of the defendants. Counsel appeared on behalf of defendant Eischer. Later a voluntary dismissal was entered as to Eischer. On July 8, 1968, default judgment was entered against defendant Bryce. Copy of the judgment was sent to the Secretary of State, and payment was refused. Plaintiffs then filed motion in circuit court seeking to require the Secretary of State to make payment from the Fund. The motion was denied, and plaintiffs applied to the Court of Appeals for a writ of mandamus against defendant Hare as custodian of the Fund, to compel him to pay the default judgment.
The Court of Appeals, relying on Grubaugh v St. Johns, 384 Mich 165 (1970), held that the one-year notice provision of the Motor Vehicle Accident Claims Act was unconstitutional because it deprived plaintiff of due process of law. 32 Mich App 548. In view of the importance of this issue to the administration of the Motor Vehicle Accident
Claims Fund, we granted leave to appeal. 385 Mich 766.
Defendants raise three issues on appeal:
1) Whether the statutory notice of intent provision as found in the Motor Vehicle Accident Claims Act and applied to competent adults, is constitutional?
2) Whether the statutory notice of intent provision as found in the Motor Vehicle Accident Claims Act and applied to minors, is constitutional?
3) Whether section 7 (3) of the Motor Vehicle Accident Claims Act bars appellees Lisee from recovery from the Motor Vehicle Accident Claims Fund?
“(3) The secretary shall not pay out of the fund any amount in respect of a judgment unless the judgment was given in an action brought against all persons against whom the applicant might reasonably be considered as having a cause of action in respect of the damages in question and prosecuted against every such person to judgment or dismissal.” (Emphasis supplied.)
Plaintiffs Howell raise an additional issue:
4) Whether the actual notice and knowledge by the Secretary of State, through its agents and employees, of the occurrence of an automobile collision by virtue of the fact that a passenger files notice with the Secretary of State and that at least one of the vehicles in the collision was uninsured, obviates the requirement of the other passengers in the vehicle to give notice to the Secretary of State?
Plaintiffs Lisee also raise one additional issue:
5) In a case involving the Motor Vehicle Accident Claims Fund, where the Secretary of State fails to enter an appearance or defend a given action on behalf of an uninsured motorist, as he is permitted to do by statute, and a default judgment is entered against the uninsured motorist, is the Secretary of State estopped from raising the defense of failure to give notice to the plaintiffs’ motion to require the Secretary of State to pay the judgment?
I.
Both parties have fully briefed the issue of the constitutionality of the notice requirements of the Motor Vehicle Accident Claims Act. However, it is well settled in Michigan that, "[constitutional questions will not be passed upon when other decisive questions are raised by the record which dispose of the case.” People v Quider, 172 Mich 280, 288-289 (1912). See, also, North Michigan Water Co v Escanaba, 199 Mich 286, 307 (1917); Brown v Hill, 216 Mich 520, 527 (1921); and Cole v Battle Creek, 298 Mich 98 (1941). Thus, we first turn to a discussion of the nonconstitutional issues raised by plaintiffs.
Plaintiffs Howell contend that the Secretary of State had actual notice of the accident which obviates the necessity of their giving notice. Ella Burgy, a passenger in the Howell car, was fatally injured and her estate did file a notice with the Secretary of State. The form prescribed by the Secretary of State provides a space to indicate whether other persons in the car sustained injuries. In addition, the State Police report, a copy of which was filed with the Secretary of State, indicated that Adrian Howell, Peggy Howell, Martha Mae Howell, and Barbara Burgy all suffered visible injuries in the accident. Thus, if the Secretary of State’s office had investigated, it would have found that plaintiffs had sustained injuries.
MCLA 257.1118; MSA 9.2818, provided:
"In all actions in which recovery is to be sought against the fund, said action must be commenced within 3 years from the time the cause of action accrues. Provided that recovery from the fund shall not be allowed in any event unless notice of intent to claim against the fund is served upon the secretary, on a form prescribed by him, within 1 year of the date that the cause of action shall accrue.”
MCLA 257.1128; MSA 9.2828, provides:
"All claims or actions under which any person seeks to recover from the fund shall be filed or commenced within 3 years from the date of accident.”
It is clear that the notice provision is not jurisdictional. Section 28 of the Act (MCLA 257.1128; MSA 9.2828), provides a three-year statute of limi tations. If section 18 (MCLA 257.1118; MSA 9.2818) was meant to be jurisdictional, there would be no need for section 28. The notice provision of section 18 was designed to serve a different purpose. The Court of Appeals stated in Stacey v Sankovich, 19 Mich App 688, 696-697 (1969):
"In his brief in support of the motion for accelerated judgment, the secretary stated his position as to the reason behind the notice provision:
" 'Since the act itself anticipates actual defense of the actions in which the secretary may otherwise be properly involved by reason of adequate notice, it is clear that he could only do so if he were, in fact, in receipt of such notice. Aside from the proviso to defend the defendant in the action, the object of the provisions of this kind has been repeated many times. It is to afford the governmental agency an opportunity to investigate and preserve evidence before the claim has become too stale, as stated in Rottschafer v. City of East Grand Rapids (1955), 342 Mich 43, or as stated in Trbovich v. City of Detroit (1966), 378 Mich 79, that the provision of notice is to protect the local units of government from possible, if not probable, spurious claims against which no defense could be made for want of timely notice and timely investigation. After all, the exposure to [sic] the Secretary and to [sic] the fund for [sic] damages and injuries to persons sustained through the tortious acts of uninsured motorists is vast. The situation here is not the ordinary situation where both the plaintiff and defendant are normally present at the scene; nor is it akin to other situations where the defendant may be in actual physical custody of property, such as where the' plaintiff be [sic] injured by a slip and fall accident. The secretary has no practical means of learning of the accidents for which the fund may be liable, unless he receives a notice. It is the contention of your intervening defendant that such notice be actual and also to enable him to arrange for advocacy, it is necessary that such notice be prompt.’
"We agree with the secretary’s position as to the purpose of the notice provision. In light of the Supreme Court’s pronouncement in Meredith, supra [Meredith v Melvindale, 381 Mich 572 (1969)], it is clear that the notice provision was inserted in the act to provide the Secretary of State, as director of the fund, with ample opportunity to investigate claims against it and to determine possible exposure of the fund to liability for payment. The notice requirement was not intended to be jurisdictional.”
In Mullas v Secretary of State, 32 Mich App 693, 697 (1971), the Court of Appeals said:
"Statutory provisions requiring that notice of a claim be given to a governmental unit are not necessarily jurisdictional. Their purpose is to insure that the Secretary will have an opportunity to investigate the validity of claims before they become 'stale’ and to determine possible liability of the Fund.”
While the issue of the purpose of the notice provision of the Motor Vehicle Accident Claims Act is one of first impression before our Court, the Supreme Court has discussed the purpose of similar notice provisions in other contexts. In Pearll v Bay City, 174 Mich 643 (1913), plaintiff sued defendant city to recover damages for personal injuries sustained in falling upon a defective sidewalk. Section 204 of the city’s charter required that notice of intent to sue be given within 30 days of the injury. The Court stated (p 647):
"The purpose of the charter provision is to furnish the municipal authorities promptly with notice that a claim for damages is made, and advise them of the time, place, nature, and result of the alleged accident, and a sufficient statement of the main facts, together with names of witnesses, to direct them to the sources of information that they conveniently may make an investigation.”
Our Court in Meredith v Melvindale, 381 Mich 572, 579 (1969), quoted with approval the above quotation from Pearll.
Thus, we hold that the Court of Appeals in Stacey v Sankovich, supra, and Mullas v Secretary of State, supra, was correct in holding that the purpose of the statute was to afford the govern-, mental agency an opportunity to investigate and preserve the evidence before the claim had become too stale, and to protect the Fund from possible spurious claims for which no defense could be made for want of timely notice and timely investigation.
The purpose of the Legislature in passing the Motor Vehicle Accident Claims Act was to compensate those persons who were injured as a result of the negligent operation of a motor vehicle by an uninsured person. Plaintiffs clearly fall within the class of persons designed to be protected by the Act. The purpose of the notice provision of MCLA 257.1118; MSA 9.2818, is met in this case. The Secretary of State did receive actual notice of the accident through the notice of intent to claim filed by the estate of Ella Burgy and the State Police accident report, a copy of which was sent to the Secretary of State. An investigation of the events surrounding the accident was in fact made. The Secretary of State in its letter dated February 23, 1967, to the Great Lakes Claims Service, stated that the injuries of the four other occupants of the Howell vehicle should be checked out. On March 12, 1967, the Great Lakes Claims Service filed an investigational report with the Secretary of State wherein it referred to the injuries received by the Howells and, on September 14, 1967, another letter was sent by the Great Lakes Claims Service to the Secretary of State which again referred to the injuries of the Howells. Hence, the Secretary of State was not prejudiced in any way. Because of the remedial nature of this Act and because of the lack of prejudice to the defendant, we hold that plaintiffs’ failure to file notice within the time required under MCLA 257.1118; MSA 9.2818, is not a bar to recovery under the circumstances of this case.
II.
Plaintiffs Lisee contend that the Secretary of State is estopped from the defense of lack of timely notice because of defendant’s failure to enter the case and plead the lack of timely notice as a defense. MCLA 257.1105; MSA 9.2805, read in part:
"Where such an action is commenced, summons and complaint shall be served on the secretary by leaving a copy thereof with or at the office of the secretary who shall forward a copy of the summons and complaint forthwith by certified mail to the defendant at his last address as recorded with the secretary. * * * In all actions where summons and complaint have been served upon the secretary, the secretary shall have the right to intervene in said action as a party defendant.” (Emphasis supplied.)
The use of the word "shall” mandates the Secretary of State to forward a copy of the summons and complaint to the defendant. No exceptions are permitted. This section also provides that the Secretary of State has the right to intervene as a party defendant. The Secretary of State contends that while it has such a right, it does not have a duty to intervene, relying on Livasy v Evans, 24 Mich App 227, 230 (1970):
"Service of summons and complaint on the Secretary of State is required to preserve a claim against the fund. Such service does not make the Secretary of State a party to the action. The latter occurs if the Secretary of State decides to intervene in the action.”
In dealing with this issue, we must not lose sight of the fact that this is remedial legislation to aid an innocent injured person. The Legislature intended that the Fund be available to promptly provide compensation for such injuries. The Secretary of State, in his failure to respond to the complaint, did not aid in carrying out the legislative purpose. The Secretary of State received plaintiffs’ notice of intent to file claim and knew plaintiffs had commenced action to recover damages. However, he took no action to intervene and relied on the lack of notice as a defense. Michigan law has long recognized that an estoppel can occur by silence. Griffin v Nichols, Shepard & Co, 51 Mich 575 (1883). Our Court has also recognized in other contexts that the defense of failure to give proper notice may be waived by a governmental body if it fails to raise this defense at the time of trial. Canfield v City of Jackson, 112 Mich 120 (1897).
We, therefore, hold that the Secretary of State had a duty to intervene and affirmatively plead the defense of failure to give notice when plaintiffs Lisee commenced their action. The failure of the Secretary of State to answer and affirmatively plead the failure of notice as a defense, denied to him this defense when plaintiffs filed their motion to compel payment, and we decline to accept the holding in Livasy vEvans, supra.
Defendant contends that section 7 (3) of the Motor Vehicle Accident Claims Act (MCLA 257.1107; MSA 9.2807), bars plaintiffs Lisee from recovery because of the voluntary dismissal entered as to Eischer. For the reasons stated above, we hold that the Secretary of State also waived this defense by not affirmatively pleading the same.
In view of our disposition of these cases, we decline to deal with the constitutional issues raised. The judgments of the Court of Appeals are affirmed. No costs, a public question being involved.
T. M. Kavanagh, C. J., and Adams, T. G. Kavanagh, and Williams, JJ., concurred with Swain-son, J.
This section was amended by 1968 PA 223, effective July 1, 1968, to reduce the filing time to six months.
MCLA 257.1107; MSA 9.2807:
See, also, Hummel v Grand Rapids, 319 Mich 616, 624 (1948), which quoted a similar statement with approval from Gridin v Ellenburgh, 171 App Div 713; 157 NYS 813 (1916).
For a somewhat analogous situation where failure to file notice completely was waived, see Nevala v Ironwood, 232 Mich 316 (1925). | [
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Swainson, J.
Both of these cases involve the issue of the validity of the Breckon decision in wrongful death actions. They have been consolidated for purposes of this opinion because they involve basically the same issues.
SMITH v CITY OF DETROIT
On April 28, 1968, nine-year-old Gary Smith was killed when he fell off a playground apparatus in an upside down position, the apparatus then rolled on top of his head crushing his skull. On February 26, 1970, plaintiff commenced an action under the wrongful death act against the City of Detroit contending that the city was negligent and grossly negligent in the maintenance of the toys at the city’s playground where the accident occurred and further that the toys constituted a nuisance. Plaintiff moved that the trial, which was scheduled for March, 1972, be adjourned until after April 1, 1972 so that plaintiff could prove damages under 1971 PA 65 which specifically permits the recovery of pecuniary damages for loss of society and companionship in wrongful death actions. The trial court granted this motion and trial was set for May 15, 1972. Prior to the commencement of the trial, defendant moved in limine to preclude plaintiff from proving damages provided by that amendment and sought to limit proof of damages to only items permitted under Breckon v Franklin Fuel Co, 383 Mich 251 (1970). Under Breckon, pecuniary damages for loss of society and companionship were not recognized. The trial court granted defendant’s motion to limit proofs and also denied plaintiff’s motion for a stay of proceedings pending appeal. Plaintiff thereupon filed an application for leave to appeal and a motion for stay of proceedings in the Court of Appeals. These motions were granted by the Court of Appeals on May 19, 1972. On June 1, 1972, plaintiff filed application for leave to appeal with our Court prior to disposition by the Court of Appeals. We granted leave to appeal. 387 Mich 791.
SWARTHOUT v BEARD
Plaintiffs decedent, Leonard Clark, was killed on July 29, 1963 when an excavation caved in on him. He was working in the excavation as an employee of Nordstrom-Myers, Inc., the general contractor putting in footings for the library building at Alma College. Plaintiffs administrator filed a complaint alleging wrongful death on November 4, 1963. An amended complaint was filed on January 28, 1966 charging negligence against Leland Beard, d/b/a/ Beard’s Welding and Erection Company, the excavator, and Lewis J. Sarvis, the architect, as original defendants. NordstromMyers, Inc. was subsequently impleaded as a third party defendant. The trial court dismissed the action against Nordstrom-Myers without prejudice on the theory of workmen’s compensation immunity. A jury trial resulted in a verdict of no cause of action against defendant Beard. A verdict of $25,000 was returned against the architect, Lewis J. Sarvis. The Court of Appeals affirmed the trial court as to the finding of liability as against the defendant Sarvis, but remanded for a new trial to determine damages in light of Breckon. 33 Mich App 395. We granted leave to appeal. 387 Mich 770.
Several issues are raised by the parties on this appeal. Two issues are common to both cases.
I. Whether pecuniary damages for loss of com panionship was a proper element of damages under the wrongful death act before the 1971 amendment?
II. Whether the 1971 amendment to the death act is retroactive?
In the Smith case the city filed a cross-appeal and raised the following issue:
III. Whether the governmental immunity statute of 1970 should be applied retrospectively?
In the Swarthout case plaintiff raised the following issues on appeal:
IV. Whether the question of interest from the date of death to the date of the verdict should have been submitted to the jury?
V. Whether the question of damages for conscious pain and suffering should have been submitted to the jury?
Defendant in the Swarthout case raises the following issues on appeal:
VI. Whether the architect had the duty to supervise the manner in which the general contractor and/or the excavating subcontractor made the excavation?
VII. Whether the architect had a duty to protect the workmen of the general contractor working in the excavation and stop the work?
VIII. Whether the trial court erred in denying defendant’s motion to dismiss at the close of plaintiff’s proofs since no evidence of the professional standards violated was submitted by the plaintiff?
The issue of loss of companionship as an element of damages has been before this Court on numerous occasions in recent years. In Wycko v Gnodtke, 361 Mich 331 (1960), our Court upheld a jury award of $14,000 under the wrongful death act for the death of a 14-year-old boy. The Court, in the course of its opinion, overruled the measure of damages as formulated by the Court in Courtney v Apple, 345 Mich 223 (1956). The Court in Courtney had stated (p 232):
"The foregoing cases and others of like import indicate the interpretation that this Court has placed on the provisions of the death act here involved. In an action to recover damages for the negligent killing of a young child the trier of the facts is required, under the statute, to determine the difference between probably contributed earnings, during minority, to a parent, and the cost of maintaining and educating such child until majority.”
The Court in Wycko traced the history of the wrongful death act in its interpretation in Courtney back to Lord Campbell’s act. Justice Smith pointed out concerning the measure of damages (p 335):
"They [the judges] were merely interpreting the statute in accordance with the social conditions of the day, which, presumably, the legislative body had in mind in the enactment of the legislation then under consideration. The rulings reflect the philosophy of the times, its ideals, and its social conditions. It was the generation of the debtor’s prisons, of some 200 or more capital offenses, and of the public flogging of women. It was an era when ample work could be found for the agile bodies and nimble fingers of small children. Defoe’s England was not long past. He noticed with approval that at Colchester and in the Tauton clothing region ' "there was not a child or in the villages round it of above 5 years old, but, if it was not neglected by its parents and untaught, could earn its bread.” ’ ”
Thus, it was not surprising that in that era courts required that pecuniary loss be established by a wage benefit less costs as a measure of damages. However, Justice Smith continued (pp 337-338):
"That this barbarous concept of the pecuniary loss to a parent from the death of his child should control our decisions today is a reproach to justice. We are still turning, actually, for guidance in decision, to 'one of the darkest chapters in the history of childhood.’ Yet in other areas of the law the legal and social standards of 1846 are as dead as the coachman and his postilions who guided the coaches of its society through the dark and muddy streets, past the gibbets where still hung the toll of the day’s executions. In most areas the development of the law has paralleled the enlightened conscience of our people. Examples abound. We no longer tolerate the intentional infliction of mental suffering. Illness from such cause is not, we now recognize, imaginary. A right to privacy is recognized, haltingly, it is true, but a start has been made. The exploitation of children by avaricious parents and guardians is no longer permitted, much less condoned. A combination of influences, all arising from the public condemnation of child labor, has resulted in almost universal State child-labor and compulsory school attendance laws. In fact, our society, by one means or another, now attempts to keep children out of the general labor market. * * *
"It follows from the foregoing that we now reject, as prayed by appellant, the child-labor measure of the pecuniary loss suffered through the death of a minor child, namely, his probable wages less the cost of his keep, in all cases consistent therewith we now overrule.”
The Court then went on to state that loss of companionship was an element of damages under the wrongful death act. 361 Mich 339-340.
In Breckon v Franklin Fuel Co, 383 Mich 251 (1970), a majority of the Court held that Wycko should be limited to its facts and that loss of companionship was not an element of damages. The Legislature by 1971 PA 65, effective March 30, 1972, amended the wrongful death act and permitted recovery for loss of society and companionship.
Thus, our decision and its application is limited to cases commenced before March 30,1972.
We hold that the Court in Breckon was incorrect in its interpretation of Wycko in that the measure of damages in wrongful death cases does include loss of society and companionship. The arguments on both sides of this issue have been thoroughly stated in numerous opinions of this Court. We believe that the dissenting opinion of Justice Adams in Breckon properly states the law and we hereby adopt that opinion. 383 Mich 280-299.
In addition, there are certain issues raised by the majority in Breckon that we will deal with in greater detail. The Court in Breckon stated that Wycko only dealt with the issue of excessive damages. However, it is clear that the Court could not uphold the recovery in Wycko without setting up a new measure of damages for wrongful death cases. In Wycko, the trial judge reduced a jury verdict of $14,000 to $7,500 and stated that no child had an earning capacity of $14,000. 361 Mich 341. Our Court in Wycko did not contend that a child of 14 could earn $14,000. If it did, then the Breckon Court would be correct in its contention that Wycko never reached the issue of loss of companionship. The Wycko Court, however, did the exact opposite and recognized that under today’s conditions a minor child is an expense. 361 Mich 341. Hence, the Wycko Court was forced to deal with the issue of what elements constituted damages under the wrongful death act. If the loss of companionship is not an element of damages, then any amount above medical and funeral expenses could not be recovered since the average child is not a breadwinner as he was in the nineteenth century. Thus, the Court in Wycko was not dealing with the issue of excessive damages but rather with the fundamental question of the proper elements of damages in a wrongful death case.
The second point is that the Breckon majority felt that the failure of the Legislature to act after the Wycko decision was not evidence of legislative intent that Wycko was correct. 383 Mich 276-277. We believe that the repassage by the Legislature of the wrongful death act in 1965 (after Wycko was decided) without change indicated legislative acquiescence of this Court’s interpretation in Wycko. As Justice Adams stated in Breckon, 383 Mich (p 295):
"It has long been recognized that where this Court has given an interpretation to a statute with no reaction from the legislature in the form of statutory revision, it may be assumed there is legislative acquiescence in the statute’s meaning. Even more persuasive is the rule that where the basic provisions of a statute have been construed by the courts and these provisions are subsequently reenacted by the legislature, it may be assumed that the legislature acted with knowledge of the Court’s decisions and that the legislature intended the reenacted statute to carry the Court’s interpreta tion with it. See: McEvoy v City of Sault Ste. Marie (1904), 136 Mich 172; Gwitt v Foss (1925), 230 Mich 8, 12; In re Clayton Estate (1955), 343 Mich 101, 106, 107; Jeruzal v Wayne County Drain Commissioner (1957), 350 Mich 527, 534.” (Emphasis by Court.)
Moreover, when the Court in Breckon did limit Wycko, the Legislature immediately acted to change the interpretation of this Court. Thus, while this is not conclusive evidence that Wycko was correct, it is strong evidence that the Legislature was cognizant of our decision when it reenacted without change the wrongful death act in 1965 and that the above quoted rule of statutory construction is a proper one.
Thus, we hold that loss of companionship is an element of pecuniary damages under the wrongful death act and that Breckon is overruled.
In the Swarthout case, plaintiff raised two other issues on appeal and defendant raised three issues on cross-appeal. We believe that the opinion of the Court of Appeals properly disposes of these issues. 33 Mich App 395. In the Smith case, the city filed a cross-appeal contending that the governmental immunity statute should be given retrospective application. GCR 1963, 853.2(5) provides:
"Within 20 days after service upon him of notice of an order granting application for leave to appeal, whether before or after decision by the Court of Appeals, appellee who has not theretofore filed a claim of cross-appeal shall have the right to file a claim of cross-appeal in the Supreme Court in substantially like form and with like effect as under Rule 807. No filing fee shall be required for filing such claim of cross-appeal.”
In this case, leave to appeal by our Court was granted on June 9, 1972 and the claim of cross- appeal was not filed until August 25, 1972. This is a clear violation of our Court Rules and no exculpatory reason has been advanced by the defendant for the delay of more than 60 days. We therefore decline to deal with this issue.
In Smith v City of Detroit, the judgment is reversed and the cause is remanded for a trial in accordance with this opinion. In Swarthout v Beard, the judgment is reversed and the cause is remanded for entry of judgment on the jury verdict. In both cases costs to plaintiff.
T. M. Kavanagh, C. J., and Adams and Williams, JJ., concurred with Swainson, J.
Breckon v Franklin Fuel Co, 383 Mich 251 (1970).
MCLA 600.2922; MSA 27A.2922.
MCLA 600.2922; MSA 27A.2922.
1970 PA 155; MCLA 691.1401 etseq.;MSk 3.996(101) etseq.
Courtney v Apple, 345 Mich 223 (1956); Wycko v Gnodtke, 361 Mich 331 (1960); Burns v Van Laan, 367 Mich 485 (1962); Currie v Fiting, 375 Mich 440 (1965); Heider v Michigan Sugar Co, 375 Mich 490 (1965); Reisig v Klusendorf, 375 Mich 519 (1965); Wilson v Modern Mobile Homes Inc, 376 Mich 342 (1965); Mosier v Carney, 376 Mich 532 (1965); Breckon v Franklin Fuel Co, 383 Mich 251 (1970).
Fatal accidents act, 1846, 9 & 10 Viet, c 93, § 2.
MCLA 600.2922; MSA 27A.2922 provides in part:
"The amount of damages recoverable by civil action for death caused by the wrongful act, neglect or fault of another may also include recovery for the loss of the society and companionship of the deceased.”
See footnote 5, supra.
1970 PA 155; MCLA 691.1401 etseq.;MSA 3.996(101) etseq. | [
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T. E. Brennan, J.
The Case
This is an action for damages for personal injury, resulting from an industrial accident which occurred on May 12, 1965. Plaintiff Connelly commenced her action in circuit court on May 10, 1968.
Defendants moved for accelerated judgment based upon the bar of the statute of limitations. The motions were denied at circuit, but upon leave granted, the circuit court was summarily reversed by the Court of Appeals.
Since we must decide whether the motions for accelerated judgment should or should not have been granted, we must assume that plaintiff will be able at trial to prove the allegations contained in her complaint.
The Facts
Thus viewed, the facts are these: In 1948, defendant Detroit Engineering purchased a Cleveland press. In 1964, Detroit Engineering rented the press to plaintiff’s employer, Wolverine Industries.
Between February 1, 1965, and March 15, 1965, defendant Paul Ruddy’s Equipment overhauled the press. Defendant Norwest Machinery Movers delivered the press back to Wolverine Industries on March 15, 1965.
Negligent acts are alleged with respect to all defendants in preparing, designing, repairing and delivering the press.
It is not disputed that the press has not been in the possession of any of the defendants since March 15, 1965, more than 3 years prior to the institution of the present action.
The Statutes
Defendants’ motion is predicated upon these sections of the Revised Judicature Act:
"Sec 5805
"No person may bring or maintain any action to recover damages for injuries to persons or property unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section. * * *
"(7) The period of limitations is 3 years for all other actions to recover damages for injuries to persons and property.” MCLA 600.5805; MSA 27A.5805.
"Sec 5827
"Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in sections 5829 to 5838, and in cases not covered by these sections the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results.” MCLA 600.5827; MSA 27A.5827.
Discussion
Prior to the adoption of RJA, it was settled that a cause of action accrues at the moment when the plaintiff could first commence a lawsuit upon it.
In the case of an action for damages arising out of tortious injury to a person, the cause of action accrues when all of the elements of the cause of action have occurred and can be alleged in a proper complaint.
Those elements are four in number.
(1) The existence of a legal duty by defendant toward plaintiff.
(2) The breach of such duty.
(3) A proximate causal relationship between the breach of such duty and an injury to the plaintiff.
(4) The plaintiff must have suffered damages.
Defendants argue that the statutory provision " * * * the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results” means, in the context of this case, that claims against them are barred, since breach of duty claimed against them must have occurred prior to March 15, 1965, more than 3 years before action was commenced.
Defendants contend that the word wrong refers to an act of carelessness or negligence in repairing or handling the press. By their view, the word damage refers to the personal injury suffered by the plaintiff on May 12, 1965, the day that the press malfunctioned.
Defendants claim that interpreting the word wrong to mean actionable wrong, tort, harm or injury is to broaden the meaning of that word, and render the word damage entirely meaningless.
It is argued by the plaintiff that under such a view, her claim is barred before she was hurt. She would never have been able to commence an action at all.
By that interpretation, plaintiff says, the statute is not one of limitation but one of abolition, com pletely destroying her cause of action before it arises.
Defendants counter by pointing out that the statute of limitations is a statute of repose, designed to protect defendants from stale claims; that this is an industrial state and it is therefore reasonable to conclude that the Legislature intended to protect industrial and commercial interests by fixing a certain limit upon exposure to liability for faulty products and workmanship.
We cannot accept the defendants’ view. However desirable the stated objectives might be, it is doubted that such was the legislative purpose. The statute in question is the Revised Judicature Act. It was drawn, as defendants point out, by a distinguished committee of lawyers, known as the Joint Committee on Michigan Procedural Revision. The purpose of the Act was to effect procedural improvements, not advance social, industrial or commercial policy in substantive areas.
The word damage is not rendered meaningless in a fair reading of the statute, even where the word wrong is understood to mean actionable wrong.
It is quite common in personal injury actions to allege and prove future loss of earning capacity, future medical expenses, future pain and suffering. Indeed all of these elements must be alleged and proved in a single cause of action. Once all of the elements of an action for personal injury, including the element of damage, are present, the claim accrues and the statute of limitations begins to run. Later damages may result, but they give rise to no new cause of action, nor does the statute of limitations begin to run anew as each item of damage is incurred.
Section 5831 of RJA provides that with respect to an open account, the statute runs from the time of the last item proved in the account.
A claim for medical bills in an action for personal injuries is not treated in the same way. It is governed by the general rule as expressed in section 5827, that later resulting damage does not have the effect of extending the limitation upon the action.
The Court of Appeals is reversed and the cause remanded to circuit court for further proceedings. Costs to abide the outcome.
T. M. Kavanagh, C. J., and Adams, T. G. Kavanagh, Swainson, and Williams, JJ., concurred with T. E. Brennan, J.
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Adams, J.
On June 27, 1966, between 10 and 11 p.m., there was a two-car collision in Saginaw County near the intersection of McCarty Road, a county road, and Bay Road, a state highway (M-84). Plaintiff was riding in a car driven by her husband. At trial, it was agreed by both parties that plaintiffs husband stopped on McCarty Road before entering the intersection to make a left turn onto Bay Road.
Defendant Sherry L. Burns, age 18 when the accident occurred, maintained that plaintiff’s car pulled into the intersection at a time when she could not avoid the collision. Pictures show the right back side and rear of plaintiffs car and the left front above the bumper of defendant’s car were severely damaged. Two police officers investigated the accident and estimated the point of impact to be 86 feet from the south edge of McCarty Road.
During direct examination of defendant, her counsel asked: "Were you issued a violation for that accident?” The question was objected to by plaintiff’s counsel. The objection was overruled. Defense counsel then asked: "Did you ever — did the officer issue a ticket for that accident?” Defendant answered: "No, he didn’t.”
The next day plaintiff’s attorney, in moving for a mistrial, stated to the court in part as follows:
"I have come to the conclusion, after a lot of thought and careful consideration, that plaintiff has been irreparably damaged.
"The jury has been prejudiced by the questioning of counsel. I would refer specifically to Mr. Cline on direct examination of his client asking the question, 'Were you issued a violation ticket for that accident?’ I have concluded, your Honor, that the mere asking of that question was so prejudicial that plaintiff cannot obtain a fair trial from this jury.
"It would be recalled, I trust, that before the case began we met in chambers and at that time I requested the Court to make a preliminary ruling on the question of traffic tickets in this case.
’’The Court: On the question of traffic tickets to the plaintiff.
"Mr. Harrigan: That was my specific request, your Honor. At that time it was indicated by the Court that no questions should be asked as to whether or not plaintiff’s driver received a traffic ticket.
"Then Mr. Cline proceeds to ask whether or not his client received a ticket, and an objection was timely made. I did not at that time ask for a mistrial but it did continue to bother me, the mere asking of the question.
"We must consider the background for which this was done and taken. The asking of the question and the testimony that would relate to it would be incompetent and immaterial. It would call for a conclusion of an investigating police officer, or some other party, what they may have in their mind, and that would be immaterial and irrelevant and improper testimony. But beyond that the asking of the question itself, the mere asking of the question creates irreparable prejudice, Your Honor. It cannot be corrected by even striking that. It cannot be corrected by sustaining an objection. The mere asking of the question has created the prejudice.”
The court denied the motion for a mistrial.
The day after the court had so ruled, during direct examination of Officer Allan L. Duby, defense counsel asked:
"Q. On the basis of this investigation in talking to both parties at the hospital you filled out your report, is that right?
"A. Yes, sir.
"Q. Is there a place on this report to mark violations for statutes or driver violations?
"Mr. Harrigan: I will object, Your Honor. This probably calls for a conclusion of the witness and also it probably invades the province of the jury.
"The Court: Read that back, please.
"(Whereupon the record was read back by the reporter.)
"The Court: You can answer yes or no.
"Q. Is there a place?
"A. There is a place, yes.
"Q. Did you mark any violation for Sherry Burns, the defendant in this case?
"Mr. Harrigan: I will object, Your Honor. We have gone through this.
"The Court: She already testified she didn’t receive a violation.
"Q. Let me ask you this last question, Officer.
"Mr. Harrigan: In that regard I would like to renew my previous motion.”
The police officer never answered defense counsel’s question.
At the close of the trial, neither party, under instructions from the court, mentioned the subject of tickets in their final arguments. The trial judge instructed the jury as follows:
"Members of the jury, I instruct you that whether a driver of one of the cars involved in this collision did or did not receive a traffic ticket issued by the police officer is not to be considered by you in your deliberations. When police come to the scene of a collision and investigate, they do not have all of the facts at hand, they were not present when the collision occurred, and didn’t see the collision, and they may not even talk to all of the people who did see the collision. For this reason, you are not to consider in your deliberations whether any traffic tickets were or were not issued to either driver.”
The jury found for defendants. A motion for a new trial was denied May 4, 1970. In a supplemental opinion filed May 25, 1970, Judge Borchard found that "the questions propounded by defense counsel to defendant did not constitute prejudicial error, especially in light of the instructions on traffic tickets, given as requested by counsel for plaintiffs.”
Upon appeal to the Court of Appeals, that Court affirmed the trial court, finding that, although the defense counsel’s questions had a "prejudicial effect,” the error was harmless under GCR 1963, 529, in the light of the trial court’s instructions to the jury. (35 Mich App 353.)
Leave to appeal was granted by this Court. (386 Mich 763.)
In Washburn v Lucas, 373 Mich 610 (1964), this Court considered the testimony of a police officer who was not present at the scene of an accident but who gave opinion evidence based upon his experience as a State Police trooper as to how the accident occurred. Justice O’Hara, in taking exception to such testimony, stated (p 617):
"The impact of such testimony upon a jury from one clothed in the objectivity of a public protector, such as a State police officer, is incalculable.”
He was joined in his opinion by Justice Dethmers.
In a separate opinion written by Justice Souris and joined in by Chief Justice T. M. Kavanagh and Associate Justices Black, Kelly and Smith, it was stated (pp 620-621):
"For separate reasons, given with detail below, we agree with Mr. Justice O’Hara that we should note from this record what the tenth circuit calls 'a constantly growing tendency in cases of this kind for an investigating officer to assume the prerogative of assessing liability’, which 'is the responsibility of the trier of the facts’ (Padgett v Buxton-Smith Mercantile Co. (CCA 10), 262 F2d 39, 42 [1958]). Moreover, we would go further, and commit this Court anew to the established rule that opinions of causation in negligence cases, 'where the subject matter of the inquiry is of such a character that it may be presumed to lie within the ordinary experience of all men of common education’ (quotation from American Jurisprudence, as quoted in Kelso v Independent Tank Co. (Okla), 348 P2d 855 [1960], more fully quoted and cited post), whether offered by experts or lay witnesses, are uniformly excluded as invasive of the province of the jury.”
Washburn v Lucas dealt with testimony by a police officer going directly to the issue of causation. In this case, the questioning of defendant and of the police officer with regard to the issuance or nonissuance of a ticket, of necessity, went to the judgment of the police officer and inescapably placed before the jury, by inference, the opinion of the police officer as to who was responsible for the accident. Once it was shown that defendant did not receive a ticket, the opinion of the police officer assessing her responsibility for the accident would be before the jury as clearly as if he had stated such opinion in so many words. We agree with the Court of Appeals that the questioning had a prejudicial effect.
The question then arises as to whether or not the error was harmless under GCR 1963, 529. A finding of prejudicial error depends on the circumstances of each case (3 Honigman & Hawkins, Michigan Court Rules Annotated [2d ed], Comments, p 228); the excessiveness or unfairness of the verdict (Ford v Cheever, 105 Mich 679 [1895]; McDonald v Champion Iron & Steel Co, 140 Mich 401 [1905]); the intent of counsel in introducing such evidence (Cluett v Rosenthal, 100 Mich 193 [1894]; Nemet v Friedland, 273 Mich 692 [1935]); and whether the evidence went to the substantive issues of the case (Burns v Kieley’s Estate, 242 Mich 668 [1928]).
Once prejudicial error is found, the cases call for reversal regardless of whether the trial judge gave an instruction in an attempt to cure the error. Potentially prejudicial error can be cured. Prejudicial error, however, implies a conclusion that the substantial rights of the party were affected. Such error calls for reversal and new trial.
As can be seen from the above, the prejudicial effect of erroneously admitted testimony will vary from case to case, depending upon the precise fact situation. For this reason, we accord considerable weight to the opinion of a trial judge in assessing the effect of testimony. In general, if the testimony is inadvertent, if proper instructions are given to the jury, and if the effort to introduce the prejudicial testimony is not repeated, we would uphold the assessment of a trial judge that the error, though potentially prejudicial, was harmless.
In this case the first incident, involving the questioning of defendant, occurred on March 18, 1970. The motion for mistrial was made the following day. The questioning of Officer Duby took place on March 20, 1970. With this sequence of events, it must be concluded that the questioning by counsel was deliberate and not an incident that inadvertently occurred. The question of the issuance of a traffic ticket was indelibly registered on the minds of the jurors. It could not be eradicated by an instruction of the trial judge at the conclusion of the case.
The Court of Appeals and the trial court are reversed. The case is remanded to the circuit court for a new trial. Costs to plaintiff.
T. M. Kavanagh, C. J., and T. E. Brennan, T. G. Kavanagh, Swainson, and Williams, JJ., concurred with Adams, J.
Black, J., did not sit in this case.
Detroit & Milwaukee R Co v Van Steinburg, 17 Mich 99 (1868); Taylor v Adams, 58 Mich 187 (1885); Sinker, Davis & Co v Diggins, 76 Mich 557 (1889); Boydan v Haberstumpf, 129 Mich 137 (1901); Hyman v Kirt, 153 Mich 113 (1908); Sulkowski v Zynda, 160 Mich 7 (1910); Burns v Kieley’s Estate, 242 Mich 668 (1928); McPeake v Grand Trunk Western R Co, 242 Mich 676 (1928); Derrick v Blazers, 355 Mich 176 (1959).
For cases in which prejudicial error was found after instructions and counsel proceeded to again commit the error previously forbidden, see Rauhala v Maki, 172 Mich 112 (1912) and Solomon v Stewart, 184 Mich 506 (1915).
For cases where issuance of ticket evidence was held not to be prejudicial because of the manner in which the evidence came in, see Gibson v Traver, 328 Mich 698 (1950); Moffatt v Helmer, 345 Mich 153 (1956); Dudek v Popp, 373 Mich 300 (1964). | [
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Butzel, J.
On June 3, 1949, Julius H. Amberg, one of the plaintiffs and petitioners herein, together with many other electors of the city of Grand Rapids, filed in the office of the clerk of that city petitions bearing far in excess of 16,531 signatures of registered and qualified voters of the city of Grand Rapids and calling for an election to recall George W. Welsh from the office of mayor of the city. The petitions were signed by more than 25 per centum of the number of electors of Grand Rapids who voted for the governor of Michigan at the last preceding election. This was in accordance with title 4, § 42 of the charter of the city of Grand Rapids, and also CL 1948, § 201.102 (Stat Ann § 6.772). The petitions contained the names, street and house number in Grand Rapids written by the signers and there appears to be no denial of any of their respective handwritings. The petition was in the following form setting out therein the reasons for the recall:
“We, the undersigned registered and qualified voters of the city of Grand Rapids, county of Kent, and State of Michigan, hereby petition for the calling of an election to
Recall George W. Welsh
from the Office of Mayor oe the City oe Grand Rapids, for the following reasons:
No. 2530
He illegally and by prior understanding acted in concert with city commissioners Wagemaker, Richards and Haraburda to violate the city charter by attempting to induce city manager Goebel to violate his charter duty and to appoint as city assessor a man they knew Goebel did not consider qualified.
He and said commissioners attempted to usurp the charter duty of the manager and threatened his discharge unless he appointed as assessor only the man of their choice.
Voted with said commissioners to dismiss manager Goebel without preferring charges, without hearing, without properly rescinding his employment contract, upon sole basis that Goebel performed his charter duty and appointed a qualified city assessor.
Refused to consider merit and fitness of city assessor appointed by city manager.
Violated standing commission rules by refusing citizens right to be heard at commission meetings on May 9, 1949.
Illegally declared adjourned a commission meeting May 9, 1949, and illegally ruled Goebel’s reappointment void.
Repeatedly refused to attend official meetings of county board of supervisors, and refused committee appointments on board, thereby depriving Grand Rapids citizens of rightful representation on board. (Twenty-five blank lines here for names of qualified electors with ward, precinct, street and number, and date.)
“State op Michigan \
County of Kent f ss‘
“The undersigned, being duly sworn, deposes and says that he signed the foregoing petition as circulator thereof; that he is a registered and qualified elector of the city of Grand Rapids, Michigan; that his street address is................in the city of Grand Rapids; that the signatures appearing upon the foregoing petition were not obtained through fraud, deceit or misrepresentation; that he has neither caused nor permitted any person to sign the said petition more than once and has no knowledge of any person signing said petition more than once; that all signatures to said petition were affixed in his presence; that the said signatures are the signatures of registered and qualified electors; that the said signatures are genuine signatures of the persons of whom they purport to be; and that the signatures were made in good faith for the purpose set forth in said petition.
Circulator
“Subscribed and sworn to before me, this......day of May, 1949.
Notary public, Kent county, Michigan.
My commission expires:............
“Note: — Each signature must be genuine and in ink or indelible pencil. It is illegal to affix another’s signature to this paper. Don’t use ditto marks. Write out address and date on each line. Give residence, not business address. Married ladies must use own first name.”
On June 8, 1949, E. Stanton Kilpatrick, city clerk of Grand Rapids, joined as defendant herein, upon receiving the petitions for the recall, called a recall election to be held in the city of Grand Rapids on June 28,1949. Thereupon George W. Welsh, also a defendant, filed a petition in the superior court of Grand Rapids asking for a writ of mandamus against Mr. Kilpatrick, the city clerk, ordering him to disregard the petitions filed with him and set aside the order for the special election, and also asking that an order to show cause be issued, with a restraining order prohibiting the holding of the special election. On the same day Hon. Dale Souter, as acting judge of the superior court, issued the order to show cause as well as the temporary restraining order asked for. Thereupon plaintiff Amberg and 2 others as plaintiffs filed a petition in this Court for writ of mandamus directing the city clerk of Grand Rapids to call a recall election in accordance with the petitions that were filed with him. Mayor Welsh, Clerk Kilpatrick and Judges Souter and Taylor are named as defendants in the petition. After answer was filed the case was duly heard.
Defendants contend that plaintiff electors have no right as private citizens to institute a suit for mandamus in public matters. This is a matter within the discretion of the court. We hold that the suit was properly brought by interested electors. Baldwin v. Alger County Supervisors, 189 Mich 372; Thompson v. Secretary of State, 192 Mich 512.
Defendants further contend that inasmuch as a suit involving the same subject matter is pending-before the superior court for the city of Grand Rap ids, this Court cannot entertain jurisdiction. As was stated in Tawas & B. C. R. Co. v. Iosco Circuit Judge, 44 Mich. 479:
“The jurisdiction of this Court in mandamus cases is not statutory, but plenary, and supervision is given over all inferior tribunals by the Constitution.”
Prom the allegations in the petition for writ of mandamus, it is necessary that the questions involved be disposed of without any delay, and it is quite apparent that such a delay would ensue if the case were to be tried first in the superior court, and if appealed, finally disposed of in this Court. Plaintiffs were not named as parties defendant in the superior court and have no control over that case. By bringing the action in this Court all questions raised can be promptly disposed of. They are of public importance and this Court has jurisdiction notwithstanding the fact that there is an action pending in the superior court of Grand Rapids.
A similar situation arose in Attorney General, ex rel. Baum, v. City of Saginaw, 177 Mich 432, and we issued a writ of mandamus notwithstanding the fact that another cause was pending in a lower court. Also, see Township of Ada v. Kent Circuit Judge, 114 Mich 77; Goodenough v. Ticknor, 265 Mich 355; Romano v. Auditor General, 323 Mich 533.
The next question raised is whether the provisions of the charter or those of the State law in regard to recall shall prevail. PA 1913, No 325 (CL 1948, § 201.101 et seq. [Stat Ann § 6.771 et seq.]), provides for and sets up the procedure for the recall of certain elective officers. Section 2 of Act No 325, supra, specifically includes elective municipal officers.
The provisions of PA 1913, No 325, in many respects differ from the recall provisions in the Grand Rapids charter. We have repeatedly held that the provisions of a general statute are paramount, notwithstanding- that the provisions of a home-rule city charter on the same subject may differ. “Where a city charter is silent upon a subject or different than the pertinent statutory provisions, the statute controls and must be read into the charter.” City of Hazel Park v. Municipal Finance Comm. (syllabus), 317 Mich 582, and the many cases cited therein. City of Big Rapids, v. Michigan Consolidated Gas Co., 324 Mich 358 (79 PUR NS 301). We, therefore, need not even discuss the claim of defendants that the petitions filed with the city clerk were invalid because each signer, when he signed his name and address, did not write down the number of the ward and precinct in which he resided. The State law does not require that the signer write in after his name and address the ward and precinct in which he lives.
PA 1913, No 325, § 2, requires that the petitions “shall state clearly the reason or reasons for said demand.” Defendant Welsh contends that the reasons stated in the petition are insufficient, that they are merely conclusions, not facts, and that they do not charge acts or failure to act, constituting misfeasance, malfeasance or nonfeasance of office, as required by this Court in construing this act. We are not in accord with this contention. The charges made in the petition state clearly the reason or reasons for recall, furnishing information to the electors on which they may form a judgment when called upon to vote. They show acts or a failure to act which in the absence of a sufficient justification would warrant a recall. In this respect they differ from those set forth in Newberg v. Donnelly, 235 Mich 531. It is not necessary that each statement in the petition by itself state facts that would constitute sufficient charge of misconduct. It is sufficient if the statements taken as a whole present facts that constitute one or more acts or failure to act constituting misfeasance, malfeasance or nonfeasance. •
Under the charter of the city of Grand Rapids, the city manager is sworn to fully perform his duties as set out in the charter and ordinances of the city. One such duty was to appoint the city assessor, subject to the confirmation of the city commission. In a written communication to the commission, the city manager did select, appoint and propose for confirmation as tax assessor a man apparently of the very highest qualifications and experience, as set forth' in the communication. The commission by a vote of 5 to 2 refused to confirm the appointment. If the commission believed the nominee unfit, it had the legal right to refuse to confirm. However, at the very same meeting Mr. Welsh, as mayor and a member of the commission, presented a written communication in which he referred to the city manager’s failure to co-operate with the commission by appointing someone not favored by the majority of the commission, and asked for reconsideration of the vote by which the manager had been reappointed. The vote was reconsidered and the manager was discharged. The mayor in his letter refers to the turmoil that had arisen because of the insistence of the city manager in appointing a person unknown to the commission. He stated:
“This is no longer a question of the choice of an assessor. It has become an issue as to whether the duly elected representatives of the people or a paid employee is to have final say in the conduct of municipal affairs.”
The city manager had the sole right under the charter to choose the assessor, subject to confirmation by the commission.
The recital of the above facts is not a determination by this Court of the truth of the charges made in the petition for recall for that is a question to be passed on by the electors. It is merely referred to in order to show that the charges are based on specific acts of the mayor and certain members of the commission and largely bear out the first 4 reasons given. Even though the statements may contain some conclusions, taken as a whole they do state sufficient facts to identify to the electors and the mayor, the acts or failure to act which, without justification, would constitute misfeasance in office.
Other reasons are also given. Some are of a serious nature. They allege facts not conclusions. Even if some of the reasons are unimportant or insufficient, as defendants claim, there are sufficient valid reasons, properly stated, in the petition that may be classified as charges of misfeasance, malfeasance or nonfeasance to raise a question as to whether the mayor’s acts warrant a recall, and entitled the electors to vote thereon.
It must be assumed the electors knew or have access to the full facts and the charges need only identify the acts or failure to act complained of so they may form a judgment thereon. In accordance with Act No 325, § 3, supra, a recall ballot used at such election shall have printed thereon besides the reasons for demanding the recall, to be set forth in not more than 200 words, the justification of his conduct in office by the officer sought to be recalled, in not more than 200 words. This gives defendant Welsh an opportunity to reply to the charges if he sees fit. The question thus is fully presented to the electors so they may form a judgment thereon.
It must be borne in mind that proceedings for recall differ very materially from those for removal from office. Proceedings for removal are' court proceedings and those for recall are passed upon by the electors. The leading case in this State is People, ex rel. Elliot, v. O’Hara, 246 Mich 312, wherein Mr. Justice Fead, speaking for the Court, stated:
“It hardly need be pointed out that the recall is fundamentally different from proceedings for removal of an officer. The theory of the recall is that the right of the people to revoke an official commission which they have granted is coextensive with their initial power to grant it. Reasons must be set up in the petition only because the legislature has so enacted, not because of any constitutional requirement or considerations of due process of law. The evident purpose of requiring a statement of reasons is to insure deliberate action by the electors and to discourage frequent, vexatious, or ambitious elections. The statute is to be construed in harmony with the reserved power of the people to recall their officers rather than with the requirements of charges to remove an officer. * * *
“In view of the general application of the statute to even the smallest municipalities, where such petitions would often be drafted by laymen, it would impose too great a burden on recall proceedings to require meticulous and technical detailed statement of the charges. It is enough that they be set up with sufficient particularity to enable the officer and electors to identify the transaction and know the charges made in connection therewith. For like reason, inclusion of insufficient reasons in the petition would not void it if one or more be properly stated. We think the second reason is sufficient.”
We have examined the contentions of defendants as to the invalidity of the recall petitions and find they are without merit. It was claimed by plaintiffs that over 26,000 qualified and registered voters signed the recall petitions. It is impossible to set forth all the evidence sustaining the charges in such petition nor is it necessary. The petitions for recall set forth sufficient to show misfeasance, malfeasance or nonfeasance in office. It is the right of the electors to pass upon them.
The writ of mandamus will issue ordering the city clerk to forthwith order a recall election in accordance with PA 1913, No 325. A public question being • involved, no costs will be allowed.
Sharpe, C. J., and Boyles, Reid, North, Dethmbrs, and Carr, JJ., concurred with Butzel, J.
See Const (1908), art 7, § 4. — Reporter. | [
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Carr, J.
The defendant corporation is engaged in the business of selling and distributing gas in various communities of the State of Michigan. It is. so operating in the city of Mt. Pleasant under a franchise granted on May 29, 1931, on which date-the requisite majority of the electors of the city approved the action, to its predecessor, the Gras Corporation of Michigan. In April, 1942, the defendant acquired the properties and franchises of the Gras Corporation of Michigan, and has carried on the.business since that time.
Claiming that defendant was violating certain provisions of the franchise which, by its terms, was. granted for a 30-year period, plaintiffs brought suit-in equity to obtain injunctive relief. Plaintiff Mac-Rae is a resident taxpayer and a user of gas within-the city. The bill of complaint was filed March 22,. 1948. Subsequent amendments broadened its scope-to include matters not covered by the pleading in its; original form. Plaintiffs alleged in their amended bill that defendant had instituted a proceeding before the Michigan public service commission to ob tain authority for the discontinuance of all rates for gas in effect in the city of Mt. Pleasant, and to substitute therefor greatly increased rates; that the specific provisions of the franchise did not allow the jurisdiction of the commission to be invoked unless and until good-faith attempts had been made to reach an agreement between defendant and plaintiff city with reference to the rates to be charged by defendant within the municipality, and had resulted in failure ; that defendant had not made any effort to obtain such an agreement; that in the proceeding before the commission defendant sought to have the new schedules of rates determined on the basis of costs for the furnishing of natural gas, and also manufactured gas, to a number of Michigan communities which defendant sought to group in one district for rate-fixing purposes, in violation of the terms of the franchise; and that defendant was about to discontinue the furnishing of gas to certain central heating •and industrial users within the city in disregard of its contractual obligation.
Plaintiffs sought both temporary’and permanent relief enjoining defendant from proceeding with its petition to the public service commission until it had in good faith attempted to reach an agreement, based on the cost of furnishing natural gas, as to rates to be charged within the city of Mt. Pleasant. The bill of complaint also asked that defendant be restrained from including the city of Mt. Pleasant in any district with other communities served by it, and from seeking to have rates determined by the Michigan public service commission on the basis of furnishing gas to all communities within any such district, as contemplated by defendant; and also from discontinuing service to central heating and industrial users within the city in accordance with its threatened action.
Defendant answered the allegations of the bill of complaint, and the amendments thereto, asserting in effect that the franchise under which it was operating in plaintiff city did not preclude it from invoking-the jurisdiction of the public service commission for the purpose of obtaining an order fixing rates for gas within the city without prior attempts to adjust such rates by agreement; that the proper conduct of its business necessitated the grouping of the city with other communities in a district within which rates should be determined on the basis of the cost of both natural and manufactured gas sold and distributed in such district; and that by virtue of a prior order of the commission it was authorized to discontinue the furnishing of gas to the central heating and industrial users thereof referred to in the bill of complaint. The answer further denied plaintiffs’ right to injunctive relief. Defendant also moved to dismiss the bill of complaint, which motion was denied.
A temporary injunction was granted by the trial court in accordance with the prayer of the bill of complaint. Following a hearing on the merits, a decree was entered embodying the principal relief sought by the plaintiffs and restraining the defendant from indulging in the conduct of which plaintiffs complained. From such decree defendant has appealed.
Plaintiff city was organized, in 1921, under the home-rule act of the State, PA 1909, No 279, as amended. No claim is made that it did not have power to grant the franchise to defendant’s predecessor. The parties are not in accord, however, as to the interpretation of certain provisions of the franchise, particularly with reference to the matter of rates and the effect thereon of certain acts of the parties subsequent to its granting. Section 6 of the franchise specified the rates to be charged for gas to be used for domestic purposes. Section 7, which is directly involved in the present controversy, reads as follows:
“Sec. 7. Alteration of Rates. The rates specified in' this franchise shall remain in force throughout the term of this franchise, subject to the following provisions : At the end of three years and at any time thereafter from and after the date of this franchise, said rates with the mutual consent of said grantee, successors and assigns, and the city commission of the city of Mount Pleasant, Michigan, or its successors, may be reviewed, altered and changed.
“In the event that said grantee, its successors and assigns, and the city commission of Mount Pleasant, Michigan, or its successors cannot agree to an altered or changed rate, then either party, namely said grantee, its successors or assigns or the city of Mount Pleasant, Michigan, acting by its duly authorized representatives, may apply to the Michigan public utilities commission (to whom jurisdiction to fix and alter gas rates in said city is hereby granted and conferred) to fix and establish rates in which case the rates so fixed, if just and reasonable, shall prevail.”
Other sections of the franchise material to the issues here are set forth in the margin.
In 1934, after the expiration of the initial 3-year period of the franchise, negotiations were had between the parties, at the instance of the city, for the adjustment of rates prescribed in section 6 of tbe franchise. Tbe parties were unable to agree; and the city, acting in accordance with the provision of section 7, above quoted, petitioned the public utilities, commission of the State for an order fixing and determining rates. The commission acted on the petition, and, under date of March 11, 1935, made an order with reference to the matter. In January, 1936, the Gas Corporation of Michigan filed a petition with the commission requesting a revision of existing rates, and also new schedules covering rates for certain central heating and industrial users. It is the claim of the plaintiffs that this action was taken after negotiations between the parties had resulted in failure to reach an agreement. The finding of the trial judge, as appears from Ms opinion, was in accord with plaintiffs’ claim. Action on such petition was duly taken, and an order was made fixing the rates in question. In 1942, the Gas Corporation of Michigan presented another petition to the Michigan public service commission, successor to the public utilities commission, apparently under like circumstances, but the petition was withdrawn before final action was taken on it.
Defendant contends that when the jurisdiction of the State commission was invoked and exercised, the provision of the franchise with reference to fixing rates by agreement was abrogated, and that power to alter such rates was thenceforth vested absolutely in the commission. Plaintiffs contend that the language of the franchise is not in accord with defendant’s claim, and that section 7, above quoted, must be construed as requiring good-faith attempts to reach an agreement between the city and the utility before application may be made to the commission to alter rates previously established, whether by agreement of the parties, or by action of the commission. It is claimed in substance, that the right to invoke the jurisdiction of the commission rests on the franchise, and that such right must be exercised accordingly.
The trial judge agreed with plaintiffs’ contention, and we think the holding was correct. Under the specific language of section 7, a change in rates after the expiration of the initial 3-year period “and at any time thereafter” was expressly authorized. It may be assumed that the parties had in mind in the framing and acceptance of the franchise that changes in the rate schedules would, from time to time, become necessary. Prom the language used it seems evident that the parties intended that in each instance of a desired alteration such action should be taken, if possible, with the mutual consent of the city and the utility. Recourse to the State commission was authorized only in the event of failure to reach an agreement. The parties did not provide that in the event of such failure jurisdiction thenceforth should be vested in the commission. Rather, the party desiring the change was given the right to apply to the commission “to fix and establish rates.” It may be noted in passing that such recourse was, in terms, authorized only for the purpose specified. In acting on the petitions referred to, the commission followed the provisions of the statute relating to its procedure. The clause in the franchise specifying that the rates so determined should be effective, if just and reasonable, suggests that the parties considered that if either felt aggrieved by the order of the commission the statutory right of appeal would be available.
In support of their argument as to the interpretation of section 7 of the franchise, plaintiffs claim that the parties by their conduct placed a practical construction thereon, and in effect recognized that the initial resort to the commission in 1934 did not nullify the provision with reference to altering rates by mutual agreement and the necessity of attempting to agree before petitioning for action by the commission. Such claim is entitled to consideration. This Court has repeatedly held that in construing contracts, indefinite or ambiguous in their provisions, the parties may properly be bound by their own interpretation. City of Big Rapids v. Michigan Consolidated Gas Company, 324 Mich 358, 367 (79 PUR NS 301), and cases there cited.
Defendant further contends that the authority of the city, in granting the franchise to defendant’s predecessor in 1931, to contract with reference to rates, was permissive only and subject to subsequent action by the State. Reliance is placed on certain language in the opinion of the Court in City of Traverse City v. Citizens’ Telephone Co., 195 Mich 373. In that case the plaintiff city was incorporated in 1895 by a local act of the State legislature. By the terms of the charter the common council was given power to regulate the use of public streets and highways within the city, and to regulate, prohibit or license the use of telegraph, telephone, electric-light and power poles or wires, over or under the streets. The Court held that whether the power to contract with reference to rates was merely permis sive, or otherwise, was not material; and that, assuming- it to he permissive only, it was valid as between the parties until State control was asserted and interposed against it. The charter of the-city of Mt. Pleasant, however, is subject to different considerations. As noted above, it was adopted in 1921 under the home-rule cities act. Article 8, § 28, of the State Constitution (1908) provides:
“No person, partnership, association or corporation operating a public utility shall have the right to the use of the highways, streets, alleys or other public places of any city, village or township for wires, poles, pipes, tracks, or conduits, without the consent of the duly constituted authorities of such city, village or township; nor to transact a local business therein without first obtaining a franchise therefor from such city, village or township. The right of all cities, villages and townships to the reasonable control of their streets, alleys and public places is hereby reserved to such cities, villages and townships.”
The above section was quoted by this Court in City of Detroit v. Michigan Public Utilities Commission, 288 Mich 267, 277 (29 PUR NS 203). In discussing the right of a municipality to contract under saicl section, as distinguished from its right to legislate with reference to rates, it was said:
“Under the above provision of the Constitution, the city has the power to fix reasonable rates as a condition to the use of its streets by a public utility. City of Kalamazoo v. Kalamazoo Circuit Judge, 200 Mich 146. In the foregoing case, the Court quoted from City of Noblesville v. Noblesville Gas & Improvement Co., 157 Ind 162 (60 NE 1032), where the court stated that a city had the unquestionable right to grant to any person, firm or corporation a franchise to occupy its streets and alleys for conveyance of gas to customers; and further:
“ ‘That the want of power to legislatively fix a rate does not prevent the execution of a contract, is illustrated by the case of City of Noblesville v. Noblesville Gas & Improvment Co., supra, where it is said:
“ ‘ “That the city had no power to regulate the rates of its licensee makes no difference. It had the power to contract. And the power to regulate as a governmental function, and the power to contract for the same end, are quite different things. One requires the consent only of the one body, the other the consent of two.- In this instance the city acted in the exercise of its power to contract, and it is therefore entitled to the benefits of its bargain.”
“ ‘In City of St. Mary’s v. Hope Gas Co., (71 W Va 76 [76 SE 841, 43 LRA NS 994]), it was held that the city might, in the control of the use of its streets, prescribe conditions including the fixing of rates for gas, and might contract therefor, even though it possessed no governmental power to fix rates.
“ ‘The distinction between fixing rates by contract and under governmental power was clearly recognized by the supreme court of the United States in the case of City of Detroit v. Railway Co., 184 US 368 (22 S Ct 410, 46 L ed 592), where it was said:
“ ‘ “It is plain that the legislature regarded the fixing of the rate of fare over these street railways as a subject for agreement between the parties and not as an exercise of a governmental function of a legislative character by the city authorities under a delegated power from the legislature.” ’
“In Boerth v. Detroit City Gas Co., 152 Mich 654 (18 LRA NS 1197), plaintiffs contended that the city had no power to regulate gas rates either by contract or legislation. It was held, however, that while the city had no legislative power to contract or establish rates, it had the implied power to prescribe rates by agreement, as a condition to the use of its streets by the gas company, because of the control provided for by the Constitution.
“The right therefore of the city to contract with reference to rates depends upon its right to control of its streets; and any contract made regarding rates is part of a franchise granted to a utility to use the streets.”
In City of Jackson v. Consumers Power Co., 312 Mich 437, 448, (62 PUR NS 48), the Court quoted with approval a syllabus in City of Detroit v. Michigan Public Utilities Commission, supra, as follows:
“ ‘The reserved constitutional power in a city to the control of its streets (Const 1908, art 8, § 28) empowers it to contract, not to legislate, for public utility rates; the power to legislate with reference thereto having been lodged by the legislature in the public utilities commission.’ ”
Counsel in the instant case cite City of Dearborn v. Michigan Consolidated Gas Co., 297 Mich 388 (39 PUR NS 31), in support of their contention. There the 5-year period for which rates were fixed by the franchise, granted by the city to the defendant, had expired. It was held in consequencé that there was no existing contract between the company and the city with reference to rates, and that jurisdiction to fix the same was vested in the State commission. City of Niles v. Michigan Gas & Electric Co., 273 Mich 255, also cited by defendant, is distinguishable on the facts from the case at bar. There the plaintiff city was subject to the fourth-class cities act of the State (PA 1895, No 215, as amended ), by which it was granted authority to contract from year to year, or for a period not exceeding 10 years, for supplying the inhabitants of the city with gas or electricity. The original franchise, on which the city relied, in terms established the rate for the life of the grant. This Court held that the franchise provision fixing the rate did not extend beyond the statutory period and that “the common council of plaintiff city had authority thereafter to contract for a change of rates,” the language quoted having reference to the express provisions of the fourth-class cities act.
PA 1919, No 419, § 4, as amended by PA 1931, No 138 (CL 1948, § 460.54 [Stat Ann § 22.4]) provides that:
“In no case shall the commission have power to change or alter the rates or charges fixed in, or regulated by, any franchise or agreement heretofore or hereafter granted or made by any city, village or township.”
The purpose of such provision is obvious. The legislature undertook to make it clear that the public utilities commission created by the act of 1919 should not have authority to interfere with rates as fixed by agreement between a municipality and a utility. Counsel for defendant argue that such provision was repealed by PA 1939, No 3. Reliance is placed on section 6 of said act (CL 1948, § 460.6 [Stat Arm 1947 Cum Supp § 22.13 (6)]) which reads in part as follows:
“The Michigan public service commission is hereby vested with complete power and jurisdiction to regulate all public utilities in the State except any municipality owned utility and except as otherwise restricted by law. It is hereby vested with power and jurisdiction to regulate all rates, fares, fees, charges, services, rules, conditions of service and all other matters pertaining to the formation, operation, or direction of such public utilities.”
It will be noted that this language contains an express recognition of restrictions imposed by law. We cannot agree with the contention that the legislature intended to repeal the provision of the act of 1919, above quoted, specifically recognizing tbe binding force and effect of franchises granted by municipalities to utilities in which rates to be charged are fixed by agreement. Repeals by implication are not favored. Had it been the intention of the legislature to attempt, by the act of 1939, to abrogate rate provisions of franchises then in force and effect, we think such intent would have been made manifest in clear and unmistakable language. Moreover, as we understand defendant’s argument, it is predicated, in part at least, on the theory that the authority of plaintiff city to contract in 1931 with reference to the rates to be charged by the utility was merely permissive in character and, hence, subject to abrogation by the State in the exercise of its inherent powers. For the reasons previously pointed out, however, we think the city had authority to enter into a binding contract of the nature and character here involved. The impairment of vested rights under such a contract was considered by this Court in Michigan Public Service Company v. City of Cheboygan, 324 Mich 309. See, also, City of Lansing v. Michigan Power Co., 183 Mich 400.
Under the. provisions of the franchise it was the duty of the defendant, before invoking action by the Michigan public service commission, to endeavor in good faith to reach an agreement with plaintiff city with reference to proposed alterations in the rate schedules. This it did not do. It appears from the record that after the present suit was instituted defendant’s representatives held some conferences with officials of the city. Presumably this was done because of the allegations in plaintiffs’ bill of complaint. Such belated action did not constitute a compliance with the requirements of the franchise. The trial court was right in so holding, and in granting injunctive relief against the maintenance of the pro ceeding instituted by defendant before the commission.
Were plaintiffs entitled to injunctive relief to prevent defendant from discontinuing service to certain central heating and industrial users of gas ? Defendant insists that it is entitled to discontinue such service on the theory that it is expressly authorized so to do by virtue of an order of the Michigan public utilities commission, entered February 24, 1936. Said order contained schedules covering rates for gas furnished for domestic purposes, for central heating-plants, and for industrial uses. Each of the last two schedules referred to contained the following clause:
“Consumers served under this schedule are subject to shutoff in favor of consumers served under domestic and commercial schedules at times when there may be insufficient gas to supply demands of all consumers.”
The petition on which said order was based was filed with the commission on January 22, 1936, and sought approval of rates that defendant proposed to charge in the city of Mt. Pleasant, and, also, in the city of Clare and the village of Rosebush. Under the terms of the franchise granted by the plaintiff municipality, the only purpose for which the jurisdiction of the commission could properly be invoked was to obtain an order fixing rates on which the parties had been unable to agree. Why the clause quoted above was included in schedules “C” and “D” of the order is not explained. The record before us does not indicate that the commission was asked to grant authority to defendant to discontinue service to consumers of gas within the city of Mt. Pleasant, and clearly, for the reason indicated, such a request would have been unauthorized.
Under the terms of the franchise defendant was obligated to serve new consumers of gas in the city, and, while it had the right under section 13 to extend its pipe lines to other communities and sell and distribute gas therein, it could not, without violating its contract, thereby destroy its ability to perform its undertaking with plaintiff city. In commenting on the situation, the trial court said in part:
“The court has heard considerable testimony concerning the reserves of natural gas in the areas supplying the Mt. Pleasant district, and the court believes that counsel for defendant admits that there is sufficient natural gas to supply the needs of the said city for a period of time, at least until the Michigan-Wisconsin pipe line is scheduled to be completed in April of 1950, however, in any event the court finds as a matter of fact that such is the condition. Further the court believes that the defendant sets forth that it intends to supply natural gas and is able to supply natural gas to the said city for all its needs and not to substitute manufactured gas or a mixture of natural and manufactured gas. The purpose of sections 10 and 13 is to secure to the city of Mt. Pleasant an even pressure of natural gas as long as the defendant company is able to furnish the same and permitting the defendant company to extend its lines and mains to service other communities, hut only so long as it would in no way affect the maintenance of a sufficient pressure of gas for the use and benefit of the inhabitants of the city of Mt. Pleasant, Michigan, thus insuring to the said city of Mt. Pleasant not only the benefit of natural gas hut also sufficient supply to meet the needs of its inhabitants.”
The record in the case supports the finding of the trial court as to the availability of natural gas to supply the needs of consumers in the plaintiff city. The correctness of such finding does not appear to he directly challenged. Under the circumstances defendant is not entitled, in view of the obligations assumed by it in the acceptance of the franchise, to refuse to continue service to the consumers in question for central heating and industrial uses. It is not in position to urge that the provision above quoted from schedules “C” and “D” of the order of the public utilities commission of February 24,1936, authorized such action on its part. The trial court properly determined the issue in favor of the plaintiffs.
As before pointed out, the petition filed by defendant with the public service commission on March 5, 1948, requested authority to abandon all rates then in-effect in certain communities served by it, including Mt. Pleasant, and to substitute therefor new uniform rates in a district embracing such communities. Obviously it was the position of the defendant that it should be permitted to base its schedules of rates in all of the communities referred to on cos'ts of service throughout the entire district, rather than being required to treat each community separately. Plaintiffs urge that such course may not be followed, as to Mt. Pleasant, without violating the 1931 franchise. The trial court upheld such contention and enjoined the defendant, in any rate application that it might make to the commission in the future to fix rates applicable in the city of Mt. Pleasant during the life of the franchise, from including Mt. Pleasant in the contemplated district, and, also, from including costs of manufactured gas, or capital investment in artificial gas plants, as a basis for any increase in rates in said city.
Defendant contends that the decree should be modified in this respect, insisting that when and if the matter finally comes before the commission for determination, it should be entitled to ask that its rates within the plaintiff city be based on the cost of service throughout the district that it seeks to establish, including other communities as well as the city of Mt. Pleasant, and that necessary costs of producing artificial gas be considered. It is further claimed that the matter is primarily one for deter mination by the commission when its jurisdiction is invoked, and that the court should not undertake, by injunction, to direct, control, or limit the procedure of the commission in advance of action thereby. Defendant’s position in this respect is, we think, well taken. It may be assumed that if the parties are unable to reach an agreement with reference to changes in the rates to be charged by defendant within the city of Mt. Pleasant, and in consequence defendant thereafter invokes action by the public service commission, the proceedings before that body will be conducted in accordance with the statutory procedure, and with due recognition of the contractual rights of the parties. Such assumption is in accord with the intent suggested by the language of the franchise. If either party feels aggrieved by the order made, and desires to question its lawfulness or reasonableness, the statutory, remedy by way of appeal is available for that purpose. The court should not, by injunctive process, seek to direct and control'the theory on which defendant presents its case to the commission, nor should it undertake by such method to circumscribe the right of the commission to function in accordance with the statute governing its procedure. The situation is not such as to justify the granting of a declaratory decree, in the form of injunctive relief, affecting the course of the proceeding before the administrative body.
The decree of the trial court, modified as above indicated, is affirmed, and a decree will enter in this Court accordingly. Because of the nature of the questions involved, and the fact that neither plaintiffs nor defendant have fully prevailed, no costs are allowed.
Sharpe, C. J., and Bushnell, Boyles, Reid, North, Dethmers, and Butzel, JJ., concurred.
CL 1929, § 2228 et seq., CL 1948, § 117.1 et seq. (Stat Ann § 5.2071 et seq.).
Ordinance No. 227 City op Mt. Pleasant May 29, 1931
"Sec. 10. Provision in regard to artificial gas. Said grantee, its successors and assigns shall bring or shall cause to be brought natural gas to the corporate limits of said city, and on or before September 1, 1931, shall be furnishing natural gas to the inhabitants of said city in substantial compliance with the terms and provisions of this ordinance. Time is deemed to be the essence of this grant and the failure of said grantee, its successors and assigns, to procure and distribute natural gas to the inhabitants of said city within the time above stated, shall at the option of said city commission, work a forfeiture of this entire franchise. Should natural gas be procured and distributed in said city within the time above stated, and at some future date, due to the exhaustion or depletion of the supply of natural gas, said grantee, its successors or assigns, are unable to procure and distribute same and are able to convince said city commission or its successors that such failure is not due to the neglect or default of said grantee, its successors or assigns, then said grantee, Its successors or assigns, at the option of said city commission or its successors, may be allowed to change over and substitute artificial gas, or a mixture of artificial and natural gas, and furnish same to the inhabitants of said city. Should such change and substitution be allowed by said city commission or its successors, then the rates to be charged the inhabitants of said city for such artificial gas or mixture, shall be fixed and established by the mutual agreement of said city commission or its successors and said grantee, its successors or assigns. If said parties cannot agree on a just and reasonable rate, and said franchise has not been declared forfeited by said city commission or its successors, then either party, nam,ely said grantee, its successors or assigns, or said city of Mount Pleasant, Michigan, acting by its duly authorized representatives, may apply to the Michigan public utilities commission (to whom jurisdiction to fix and alter gas rates in said city is hereby granted and conferred), to fix and establish rates for said artificial gas or mixture of artificial and natural gas, in which ease the rates so fixed, if just and reasonable, shall prevail.
“Sec. 11. Industrial rate. Grantee may charge for natural gas for industrial purposes, such rates as may be mutually agreed upon by the city of Mount Pleasant and said grantee.
“In the event of their inability to agree on such industrial rates, then said rates shall be such as may be fixed by the Michigan public utilities commission, upon the application of either party.
“Sec. 12. Franchise subject to control. The said grantee shall provide gas of the quality, heat units and pressure, and shall provide, inspect and install its meters for registering gas furnished hereunder, and shall otherwise transact its gas business in said city, subject to the rules and regulations of the Michigan public utilities commission or its successors, applicable to gas service therein. All the rights, powers and authority hereby granted and vested in said grantee, shall at all times remain subject to such reasonable regulation and control of the city commission of said city or its successors, as the same may from time to time be prescribed and adopted by ordinance or resolution of said city, except as to such matters as are regulated or provided for by this ordinance, or are herein submitted to the control and regulation of the Michigan public utilities commission, or its successors..
“Sec. 13. Ordinary standard to be maintained. Said grantee, its successors or assigns, may extend their pipe lines to other cities, communities or territory, and may sell gas to the same, but such sale shall in no wise affect the obligation of the grantee, its successors or assigns, to maintain and furnish sufficient pressure of gas for the use and benefit of the inhabitants of the said city of Mount Pleasant, Michigan.
“Sec. 14. Grantee to file acceptance. In consideration of the rights, authority and privileges herein granted, all of which shall vest in the grantee, its successors or assigns, for the period of 30 years as aforesaid, said grantee shall provide gas service in said city during the term of this franchise, and shall well and faithfully perform all tilings required of it herein, and such performance by the grantee, its successors or assigns, shall be in lieu of all license fees and charges, of every hind and nature except lawful taxes upon its property, which the city might otherwise levy or impose.”
“Sec. 18. Extension of mains. Grantee, its successors and assigns, agrees to extend its lines and mains to serve new consumers of gas in said city as provided for in the present charter of said city. The grantee, its successors or assigns agrees to install services from the main to the curb line, free of charge to the consumer.
“Sec. 19. Franchise subject to' charter. This franchise is hereby granted by said city, and is hereby accepted by said grantee, its successors and assigns, with the express understanding and agreement that all terms, conditions and requirements of chapter 8 of the revised charter of Mount Pleasant, Michigan, adopted by the electors of said city on March 7, 1921, and amendments thereto, apply to this franchise with the same force and effect as though said chapter 8 and amendments thereto, were specifically set forth and incorporated in this grant.”
CL 1929, § 1796 et seq., CL 1948, § 81.1 et seq. (Stat Ann § 5.1591 et seq.).
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Butzel, J.
Tony Tudryck and Mary Tudryck, his wife, were for some years the owners of a 140-acre farm in Deep River township, Arenac county, Michigan. On March 1, 1934, they had deeded the property to the Sterling Bank of Sleeper and Chamberlain of Sterling, Michigan, which gave back to them a land contract for the repurchase of the property. The bank was represented by J. Otis Mutch, its cashier and agent. On August 24,1935, they had given an oil and gas lease of the property to one Alvin Wilkinson, but oil was not discovered at that time and the lease was evidently later terminated. In 1938, the Tudrycks had attempted to sell their interest in the property" through Thomas Olszynsld, a real estate dealer, cross-plaintiff and cross-appellant herein. There arose some question as to the title of the property and on June 22,1938, Olszynski took-them to the office of Harry J. Lippman, an attorney of many years experience, and in whose office the daughter of Olszynski was employed as a stenographer. The Tudrycks believed they were entitled to a reconveyance of the property, but they had no money with which to pay an attorney. Mr. Lippman testified that when asked about his fees for handling the case, he stated that he “would handle it on a contingent-fee basis.” On the following day 4 instruments prepared by Lippman were signed by the Tudrycks. One, a contract of employment, also signed by Lippman and Olszynski, provided that in consideration of past and future services, Lippman was to receive 50 per cent, of all money or property recovered in the contemplated lawsuit with the bank. It also provided thht any proceeds from the oil and gas lease on the land or any other thereafter executed by the Tudrycks should be divided one third to Lippman, one third to Olszynski, and one third to the Tudrycks. The agreement further stated that the Tudrycks were that day conveying a one-half interest in the land to Lippman, and under his_ direction the deed was to be made out to Harry J. Lippman and Marian Lippman, his wife, plaintiffs and appellants herein. There is no claim that Mrs. Lippman rendered any services to the Tudrycks, or had anything whatsoever to do with the transaction. She did not testify at the hearing of the instant suit. The other instruments signed by the Tudrycks consisted of a quitclaim deed of a one-half interest in the 140 acres to Lippman and wife, an assignment of a one-half interest in the land contract with the bank to Lippman and wife, and an assignment of a one-third interest each to Lippman and Olszynski in the oil and gas lease, as provided for in the contingent-fee contract. None of the instruments were recorded at the time, but 6 years later, after oil was discovered on the property, the quitclaim deed of the one-half interest to Lippman and wife was recorded.
Lippman after the execution of the contingent-fee contract opened a correspondence with Mr. Mutch,, the cashier and agent of the bank, seeking an amicable adjustment. He finally began a suit in equity and secured a temporary injunction, which he personally served with a summons and bill of complaint, on Mr. Mutch. Lippman claims that when he served Mutch he showed him the employment contract, deed, et cetera, but Mutch stated he did not-remember that he had ever seen the instruments. Olszynski testified that Lippman handed Mutch the agreement, that the entire interview lasted “around 10 to 15 minutes,” that Mutch did not read it all through, that he glanced through it, looked at the last page, and handed it back to Lippman. In making application for the temporary injunction, Lippman did not disclose to the court that he and his wife had any interest in the property. In fact the bill of complaint negatives such claim, as Tudryck and wife, the sole plaintiffs, w.ere described as the owners. A trial judge at the hearing may disbelieve a party litigant, even though there 'be no direct denial of his testimony.
A receiver was appointed for the said bank on October 14, 1938, and was permitted to intervene as a party in the case. When it was ascertained that the Tudrycks actually owed a very much larger sum to the bank, Lippman opened negotiations for a settlement with the attorney for the receiver, and finally, with the consent of the court, $300 was paid in full settlement. In the negotiations for settlement between Lippman and the attorneys for the receiver, the former wrote “if the receiver can acquire title to the property freed from all claims, for the sum of $500, that would be an exceptionally good bargain for him,” et cetera. The Tudrycks executed a quitclaim deed of all their interest to the receiver of the bank, and Lippman gave them $110 and kept $190 of the $300 received hy him in satisfaction therefor. On January 18, 1940, at the time of the settlement, Lippman wrote Olszynsld that the attorneys for the receiver demanded that they sign over their interest in the oil and gas lease. Lippman and Olszynsld then jointly executed an assignment of the lease (evidently the Wilkinson lease) that was attached, and they included in the assignment the further statement that “we in no manner holding any other right, title or interest in the premises under the lease involved.” On stipulation of the attorneys, duly approved by Lippman, a decree was entered in the •equity suit establishing and confirming title to the 140 acres in the receiver of the bank. This effectively closed the entire transaction.
Mr. Lippman stated that shortly before May 9, 1944, when he recorded the Tudryck deed, he learned that oil had been discovered in paying quantities on the. property. He claims that the deed was not recorded earlier because he had given it to his wife, who had placed it for safekeeping in a safety deposit vault'. Shortly after recording the deed, he .and his wife as tenants hy the entirety, and Mrs. Lippman in her individual capacity, as plaintiffs, brought the present suit against Olszynski, Mutch, and others who respectively claimed either ownership or interest in the overriding lease and the subleases of the gas and oil rights in the property. A protracted hearing was held, as shown by the 3 volumes of the printed record before us. In addition, frequent reference was made in the record to the case of Tudryck v. Mutch, 320 Mich 87, with which the trial judge was familiar. The trial judge rendered an opinion in which, after reviewing the former case, brought hy the Tudrycks in regard to the land contract and its final disposition by a decree cutting off all tbeir rights or claims, and the abandonment of the cross bill seeking a foreclosure, he said:
“That defendants had notice of plaintiffs’ interest in the premises. This claim involves a consideration of the nature of the interest of plaintiffs. I am satisfied from an inspection of the attorney-client agreement and from all the testimony that the deed under which plaintiffs’ claim was but part of an employment contract on a contingent basis, and was never intended to convey a present, existing interest in the real estate. That the deed was taken by Harry J. Lippman for, or as a protection for his attorney fee in event he succeeded in obtaining a decree favorable to his clients. Upon the hearing it developed that his clients owed the bank a sum far in excess of the then fair market value of the land, and consequently Lippman was forced to take his fee out of the $300 paid by the receiver, and out of which he took one-half as the agreement provided. Having failed in his efforts to get the lands .for his clients, the deed to plaintiffs never became effective as a legal transfer of title. Mr. Lippman did too many things inconsistent with the theory that the deed was intended to convey a present interest. And such things run from his preparation of his clients bill of complaint alleging all title in them, to his failure to inform this court of his interest at the time of his application for the preliminary injunction, or during the trial of the cause, or at the time of the decree when the court ordered his trust officer to pay $300, for an absolute title in fee, and down through his acceptance of half of the $300 as his fee.
“So I am forced to conclude that such instrument never was effective as a conveyance of title, or that Harry J. Lippman practiced fraud or deception on this court. In either event his actions have estopped him, and all claiming by, through or under him, from asserting title as against the receiver or those claim ing under him. But even though it were considered as a legal conveyance, I am satisfied that Harry J. Lippman never informed J. Otis Mutch of his, Lippman’s interest in the land, and I so find as a fact that none of the defendants — meaning thereby the receiver and those claiming under him — had notice of plaintiffs’ interest in the premises as claimed by plaintiffs. I so find after consideration of all of the testimony and in judging the credibility of the witnesses by the usual standards. The burden on plaintiffs has not been met.
“So far as Marian F. Lippman is concerned she is in no different position than any other person claiming under a deed withheld from record without notice thereof to a subsequent bona fide purchaser for value. I find the receiver and those claiming under him are bona fide purchasers for value without notice, and that the Lippman deed is void. CL 1929, § 13304. ”
The trial judge further stated that he had seldom seen a case so devoid of equity. He further denounced the entire case as presented by plaintiffs in no uncertain terms. A decree was entered for the defendants, and the plaintiffs and cross-plaintiff have appealed.
It would serve no useful'purpose to further discuss the testimony or the credibility of the witnesses. We are in full accord with the opinion of the trial judge and the decree entered in accordance therewith. In the entire correspondence and the court proceedings leading to the decree in the first case, the Tudryck deed, on which the plaintiffs here rely, was never mentioned. Lippman claims that he had forgotten about it at the time. It appears to us that this simply confirms the conclusion that the deed was given only as security for the contingent-fee contract. The plaintiffs never individually or as tenants by. the entirety had title to or were vested •with a present interest in the property. The deed was given only to secure the attorney fees, which were paid on the settlement of the first case.
The other questions in regard to laches, estoppel, lack of notice, et cetera, raised by the parties become moot, and though they may be of merit need not be discussed. We have only mentioned some of the important facts that have brought us to our conclusion. We do not deem it necessary to set forth additional facts that only confirm those we have stated and further support our conclusions. The appeal of the cross-appellant, Olszynsld, which largely follows the claims of plaintiffs as appellants is without merit. He largely relies on the contingent fee contract in which the Tudrycks were the first parties, Olszynsld the second party and Lippman the third party. The preamble contains the statement that:
“Whereas, the said first parties have engaged the second party to help and assist them in connection with said controversy; * * '*
“Now thereeore, the said first parties hereto, in consideration of the services heretofore for them by the said second party hereto, Thomas Olszynsld, already performed, as well as in consideration of the services to be for them by the said Thomas 01-szynski hereafter rendered, as aforesaid, * * * second party, in consideration of his services aforesaid, to receive a like one-third interest in all moneys from and after this day by the said first parties hereto received by, through or because of the said existing oil and gas lease on said premises aforesaid, or anv other oil and gas lease hereafter upon the said farm premises by the first parties executed, * * * and grant unto the said second party hereto a one-third interest in and to any moneys by them, the said first parties hereto, at any time hereafter received under said existing oil and gas lease on said farm lands aforesaid, or any oil and gas right or rights in connection with said lands hereafter executed.”
No further oil leases were made by the Tudrycks. The new oil lease was made by the receiver of the bank after title was vested in him by deed and decree. Olszynski’s testimony and .the pleadings filed in his behalf tend to disprove his claims. Olszynski must have known that when he assigned the oil and gas lease which expressly disclaimed any other right, ■ title or interest in the premises under the lease involved, he was through.
Decree affirmed, with costs to appellees from appellants.
Sharpe, C. J., and Bushnell, Boyles, Reid, North, Dethmers, and Carr, JJ., concurred.
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Black, J.
This case involves what is claimed to have been a defective chair. The chair was owned and provided for their patrons by the defendant motel operators. With several fellow-workers plaintiff Carroll E. Jones was staying at the motel. At end of the workday four of the crew started to play pinochle in one of the rented rooms. They sat around "something like a tea table”. After some 20 to 30 minutes of playing the rear legs of Mr. Jones’ chair collapsed, causing him to fall on his fundament and suffer a ruptured disc. The injury necessitated a spinal fusion.
Plaintiffs, husband and wife, sued the defendants on two theories: (a) negligence and (b) breach of an implied warranty of fitness for intended use. The first trial resulted in a directed verdict and entry of judgment for defendants. Plaintiffs reviewed, with result shown by an opinion of Division 3 (23 Mich App 338 [1970]); that of retrial of plaintiffs’ claim of negligence and denial of plaintiffs’ claimed right to recover upon their charge of breach of an implied warranty.
The second trial resulted in a no cause verdict and entry of a second judgment for defendants. Upon second review plaintiffs successfully applied for bypass, pursuant to GCR 1963, 852 (384 Mich 837).
The sole reviewable question readily appears in the opinion of Division 3. It is whether upon due pleading and submission of supporting proof plaintiffs may recover for breach of an implied warranty of fitness, such as they contended for during and since the first trial. Division 3 rightly found that no Michigan case has extended, directly at least, "warranty of fitness into this area”. The Judges concluded that "we choose not to so extend it at this time.” (23 Mich App 340.) However, upon present review, we have decided that this is an appropriate case for alignment of Michigan with the general rule of the common law, set forth in 8 Am Jur 2d, Bailments, "§ 144. Implied warranty of fitness.”, pp 1039-1040:
"It is the general rule that, in the absence of an agreement to the contrary, the bailor of a chattel to be used by the bailee for a particular purpose known to the bailor, impliedly warrants the reasonable suitability of the chattel for the bailee’s known intended use of it. The rule of implied warranty has been adopted by statute in some jurisdictions. The implied warranty is said to be raised by the delivery of the chattel to the bailee, where the quality or fitness of the article for the use specified is not visible and the defect is not discernible by an ordinary observer. As a warranty against defects it has been said to extend to such faults and defects as would entirely prevent the contemplated use and enjoyment of the bailment, or render it dangerous, but not to those which would merely diminish its convenience and appropriateness for the use designed.”
The quoted text lists a number of decisions and ALR annotations which, upon examination, tend clearly to support the stated general rule. The latest of these annotations appears in 68 ALR2d, pp 850 et seq.:
"§ 4. Implied warranty of suitability for known intended use.
"It appears to be the general rule that, in the absence of an agreement to the contrary, the lessor of a chattel to be used by the lessee for a particular purpose known to the lessor impliedly warrants the reasonable suitability of the chattel for the lessee’s known intended use of it.” (p 854.)
Plaintiffs’ counsel call attention to Schnitzer v Nixon and Heath, d/b/a Cavalier Manor Motel, 439 F2d 940 (CA 4, 1971) saying that its facts and reasoning are on all fours. We agree, adding only that in the specific circumstances presented both here and in Schnitzer, it matters not that the chattel comes to the possession of the plaintiff either as lessee or bailee. The general rule to be applied is the same, absent any one of its known exceptions. Schnitzer concludes (p 942):
"These antecedents considered, we have no hesitancy in declaring the plaintiff entitled to succeed in Virginia on an implied warranty, negligence aside. It is but a fair placement of the innkeeper’s responsibility to a guest under his roof.”
Upon strength of the stated general rule and the reasoning of the Fourth Circuit. I vote to reverse and remand for trial of plaintiffs’ theory of recovery upon warranty.
I would so order, with award of costs of all courts to plaintiffs.
SUPPLEMENT (August 24, 1972).
This Rule 852 appeal was duly assigned to the writer in accordance with our practice. It was submitted May 2, 1972. The foregoing opinion dealing with the reviewed merits, was delivered to the other Justices June 7. July 11 Justice Adams submitted his opinion (post 177) for affirmance. July 20 Justice T. G. Kavanagh submitted his opinion (post 180) for dismissal of the appeal. July 26, being judgment day for and upon submitted opinions, Justice T. E. Brennan held up the Court’s decision for study and possible further writing. There being no such additional writing to date, I have decided by this supplement to respond to the opinions submitted July 11 and July 20.
The two opinions turn upon dual allegation (a) that plaintiffs’ appeal to this Court came too late under GCR 1963, 853.2(3); upon dual allegation (b) that the opinion and judgment of the Court of Appeals on first appeal to that Court (23 Mich App 338) became "the law of the case”, and (c) upon allegation (Justice Adams only) that plaintiffs, by election not to apply for leave to review the cited judgment of the Court of Appeals, thereby chose "to accept the decision of the Court of Appeals”. The Justice writes that that choice "estopped the plaintiffs from raising the issue of implied warranty * * * .” (Let this last stand, naked and innocently shameless before all counsel who now must decide — at pain of estoppel — whether they should make prompt application for leave to review every aggrieving interlocutory order or judgment of the circuit court or of the Court of Appeals.)
First: Just how may GCR 1963, 853.2(3) be applied in bar of the instant appeal? No application under that rule, delayed or otherwise, has been made by any party throughout the history of this case. Plaintiffs have sought instead, properly and successfully thus far, leave for bypass of the Court of Appeals under preceding GCR 1963, 852. That rule sets forth no time limit for filing of application thereunder except that same must be filed "within 30 days after filing of the claim of appeal” (GCR 1963, 852.2[1]). Plaintiffs certainly did so ñle, on time.
May 7, 1971 our order granting plaintiffs’ application for bypass was entered (384 Mich 837). The Court’s action was unanimous and done in the face of defendants’ unsupported objection that plaintiffs should have attempted to appeal the first time and, having failed so to do, were estopped to apply for bypass. Our conferential minutes read (May 3, 1971; Re Jones v Keetch):
"Motion by Justice Black, supported by Justice Williams, that application for leave to appeal to this Court prior to decision by the Court of Appeals be granted. Motion carried.”
Although the purely procedural question Justices Adams and T. G. Kavanagh have considered in bar of the meritorious question was raised by the defendants in opposition to plaintiffs’ application for bypass, the Court thought so little of it that no discussion thereof took place during the Court’s conference on May 3, 1971. Instead, we concerned ourselves with the advisability of reviewing the warranty question presently, rather than holding a much delayed case over for — possibly or probably — another "we choose not to so extend it at this time” provisional opinion by the Court of Appeals. Further, in the precedently submitted report to us by the assigned Supreme Court Commissioner, the question thus advanced was disposed of as follows:
"It by no means follows that our Court of Appeals would again come to the same conclusion in view of the growing body of cases. Defendants point out that the plaintiffs could have appealed from 23 Mich App 338 instead of accepting another trial based on negligence theory only. That does not count against them now. I see no need for by-pass.”
My memorandum to the Court dated March 26, 1971, and notes made upon return to the office from that May 1971 session of the Court, show that we disagreed only with Commissioner Planck’s view that the Court of Appeals, should it be left in charge of the then pending appeal thereto, probably would conclude differently upon further consideration of the meritorious question. In opposition to that view I suggested by memo to the Court that "[t]wo trials of a case like this really ought to be enough without having had the controlling question definitely settled” and that "[ajnother panel probably would conclude as before, * * * .” The result was our unitary order for grant of bypass. Nonetheless, two Justices voting to enter that order say now, more than a year later, that we had no power so to do, GCR 1963, 853 considered. This surely means "no jurisdiction”, as "jurisdiction” is known here moderne by People v Holbrook, 373 Mich 94 (1964) and Holbrook’s painful explainer, People v Carter, 379 Mich 24 (1967), both per Adams, J.
Second: The named Brethren aver that the Court of Appeals, having ruled that "[w]e know of no Michigan case which has extended warranty of fitness into this area, and we choose not to so extend it at this time” (23 Mich App 338, 340), has thereby written "the law of the case”. They offer no authority for this newfound vagary, that the "law of the case” can be made by a subordinate court of Michigan in bar of review of that "law” by this Court; a Court which may — and in this case has — granted review thereof. Right here, with utmost respect and deference, I frame square issue with the Brethren in twinship.
Depending upon the distinctives of constitutional provisions and procedural laws and rules in effect elsewhere, authority can be found both ways for holding that the "law of the case”, declared once by a subordinate court on first appeal thereto, is (or is not) upon second or additional review binding upon the highest Court of the given state. See annotation, First decision of intermediate court as law of case on appeal to court of last resort from subsequent decision, 118 ALR 1286, annotating what to me is (if indeed authority is needed) the decisive precedent for Michigan; our judicial article (Const 1963, art 6) considered along with RJA 212, 215, 217, 219, 223 (MCLA 600.212 et seq.; MSA 27A.212 et seq.) and our established rules of Court, particularly GCR 1963, 865.
The case annotated in ALR, cited above, is New York Life Ins Co v Hosbrook, 130 Ohio St 101; 196 NE 888 (1935), overruling the Gohman case, cited by quotation below. The Supreme Court of Ohio, paralleling in particular this Court’s constitutional authority as regards the adjective law of our state, ruled:
"Counsel for both sides have presented and at some length have argued to this court the doctrine commonly known as 'the law of the case.’ Plaintiff in error contends that the first and second propositions of the syllabus in Gohman v City of St Bernard, 111 Ohio St 726, 146 NE 291, 41 ALR 1057 [1924], are not sound law and should be overruled. With equal vigor, counsel for defendant in error insists that those paragraphs should be sustained. The question is thus presented. On the second rehearing, the appellate court, in affirming the second verdict and judgment, in its opinion, said: 'The second trial was had in substantial conformity with the former decision of this court. The doctrine of the law of the case is therefore applicable, and pursuant to it the judgment will not be disturbed. Gohman v City of St Bernard, 111 Ohio St 726 [146 NE 291; 41 ALR 1057].’ The procedural doctrine announced in Gohman v City of St Bernard, supra, is not consonant with the principles of judicial procedure upheld not only in Ohio, but by the United States Supreme Court, as shown by those cases reported on pages 760 and 769 of the dissenting opinion in 111 Ohio St, 146 NE on pages 301 and 303. The claim that an erroneous declaration of the law pronounced by an inferior court can forestall review by our state Supreme Court rests upon a doctrine which is repugnant not only to our established judicial system providing for a Supreme Court as the last court of review, but also to section 2, article IV, of our State Constitution, which expressly empowers the Supreme Court with authority to 'review, and affirm, modify or reverse the judgment of the court of appeals.’ The propositions of law announced in the first and second paragraphs of the syllabus in Gohman v City of St Bernard, supra, are overruled.” (Quotation from Northeastern Reporter.)
This is the rule in New York State. See discussion and citation with respect to that state’s view in the first mentioned ALR annotation (118 ALR at 1288), and Walker v Gerli, 257 App Div 249; 12 NYS2d 942, 945 (1939) from which last the following is taken:
"The law of the case, like the principle of stare decisis, is a rule of comity or convenience. Luminous Unit Co v Freeman-Sweet Co, 7 Cir, 3 F2d 577 [1924]. Since from its very nature, it involves the effect of orders which are interlocutory, it must be distinguished from res adjudicata. Bannon v Bannon, 270 NY 484; 1 NE2d 975; 105 ALR 1401 [1936]. Accordingly, its effect is limited to a court of coordinate jurisdiction which ordinarily should not disregard an earlier decision on the same question in the same case. Compare, Cluff v Day, 141 NY 580; 36 NE 182 [1894]. The rule does not apply in a court which is required to review the later order on appeal and which, therefore, ought not to be concluded by an earlier decision, interlocutory in character, made by a court of subordinate jurisdiction from which no appeal was taken. Messinger v Anderson, 225 US 436; 32 S Ct 739; 56 L Ed 1152 [1912]; Brown v Tourtelotte, 24 Colo 204; 50 P 195 [1897]. No decision of the Court of Appeals to which our attention is directed holds otherwise.
"To hold otherwise would preclude a plaintiff, who has stated a complete cause of action against the individual defendants which he may be able to sustain by proof, from ever recovering from them. This would inevitably follow if an earlier order of the Special Term dismissing the complaint were binding even in an appellate court whenever thereafter the question of its sufficiency was presented. Since the Special Term would always be required to adhere to the earlier decision, however erroneous it might be, and since every appellate court would likewise be precluded from consideration of that question, such a plaintiff would suffer all the consequences of a final judgment in favor of the defendant. See Note, 'The Law of the Case,’ XLII Harvard Law Review, page 938; United States Annuity & Life Ins Co v Peak, 129 Ark 43; 195 SW 392; 1 ALR 1267 [1917]; McGovern v Kraus, 200 Wis 64; 227 NW 300, 67 ALR 1390 [1929].” (Emphasis supplied by present writer.)
But I do not and need not rest decision upon views held elsewhere. Here in Michigan we have settled — procedurally upon the very nub of present discussion — that this really is a Supreme Court; one that may review any decision of a subordinate Michigan court which, final adjudication being absent, a party seeks to review upon application submitted in accordance with our established rules. That has been done here. All here have voted to review the question of recovery upon warranty. Authority so to do has been supplied by the judicial article. Pursuant thereto we have adopted a rule providing that this Court may at any time give any judgment and make any order which ought to have been given or made. To say in the face of all this that the first appeal to the Court of Appeals resulted finally in "law of the case” — that plaintiffs may not recover in warranty —is to say that this constitutionally assigned Supreme Court is powerless to review such "law”; hence is powerless to affirm or reverse any judgment below that is based thereon.
By their opinions aforesaid, and unless those opinions are amended, adjusted, or withdrawn hereafter rather than supplemented, Justices Adams and T. G. Kavanagh will have recognized expressly — of record — that recovery upon plaintiffs’ theory of breach of warranty should have been permitted by the Court of Appeals when that Court reversed and remanded for retrial on April 27, 1970. Our conclusion should be, but per 1971-72 cozy custom probably will not be, that this is enough to call for judgment of reversal and remand for trial of the stated issue.
To Conclude:
What Justices T. G. Kavanagh and Adams stand for, as above, deserves firm majority support or firm majority disavowal. The Court owes to the profession, and most certainly to the trial bench, a clear declaration either:
(a) That failure to make timely application for review of an interlocutory determination, made by order or judgment filed or entered either by the circuit court or the Court of Appeals, renders that determination the law of the case, or
(b) That the constitutional power of this Court to review, what it has decided to review under GCR 1963, 852, remains intact and undisturbed by any of the limitational periods that are set forth in any of our rules of Court.
Authors Honigman and Hawkins under GCR 1963, 820 ("Miscellaneous Relief Obtainable in Court of Appeals”) have summed up appropriately that which characterizes this Court’s position in present regard (6 Michigan Court Rules Annotated [2d ed] p 213):
"Notwithstanding the constraints of rules and practices otherwise applicable, the Michigan Supreme Court has generally maintained its power to do whatever needs to be done in a particular case in order to achieve ultimate justice. Remedial powers reflecting this attitude were set forth in former Rule 72 and now have been made applicable to appellate proceedings in the Court of Appeals by Rule 820, as amended, effective January 1, 1965.”
T. M. Kavanagh, C. J., and Swainson and Williams, JJ., concurred in original opinion and the result of the supplement by Black, J.
The earlier rule reported by American Jurisprudence appears in 6 Am Jur, Bailments, p 308: "§ 192. Bailor’s Liability in Tort, Arising from Defects in Chattel. ”
No authority for this curious proposition is cited in either opinion. If there is any such authority in Michigan now that we have two appellate Courts rather than one, it seems to have escaped all of us; including that great retinue of full time and altogether able research clerks our majority has hired.
"[A]t this time” was April 27, 1970 (rehearing denied June 8, 1970). Schnitzer v Nixon, supra, was decided March 19,1971. Commissioner Planck may have been right, after all, when he said that "fi]t by no means follows that our Court of Appeals would again come to the same conclusion in view of the growing body of eases. ”
This rule dates back 41 years. It entered by the 1931 revision of Michigan Court Rules as No 79. Then, by the revision of 1945, it became Court Rule 72. Now it is cited as GCR 1963, 865.
Hosbrook was followed most recently in Ohio by Ross v Cincinnati Transit Co, 105 Ohio App 327; 148 NE2d 84 (1957). For those desiring research in depth, outside Michigan, reference is made to the subsequent annotation, Erroneous decision as law of the case on subsequent appellate review (87 ALR2d 271), plus cases found in ALR 2d Later Case Service, Vol 6, pp 666-668. The weight of authority, naturally, lies with the manifest sense of Ohio’s view.
Direct reference by the same authors was made to this under GCR 1963, 865 ("Miscellaneous Relief Obtainable in Supreme Court”), 6 Michigan Court Rules Annotated (2d ed), pp 297-298. | [
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Bushnell, J.
Plaintiff Safety Investment Corporation, claiming an interest in certain lands in the city of Detroit, filed a bill of complaint against defendants State land office board, Phillip B. Knight and Mary Knight, his wife, to set aside a certain land contract issued by the board, under the so- called “scavenger act” (Act No. 155, Pub. Acts 1937, as amended by Acts Nos. 29, 244 and. 329, Pub. Acts 1939 [Comp. Laws Supp. 1940, § 3723-1 et seq., Stat. Ann. 1940 Cum. Supp. § 7.951 et seq.]), to Knigbt and his wife. Plaintiff asked the court to enter a decree directing the board again to offer the land in question for sale “as though the same were not in the first instance offered for sale.”
The several defendants filed motions to dismiss, which were denied. Defendants Knight took the position in their answer that they were owners within the meaning of the above act, and denied plaintiff’s claim of ownership. Plaintiff charged that the Knights were not owners and, therefore, were not entitled, under the act, to purchase the lots in question from the board, and that such purchase was brought about by their fraudulent acts. The basis- of plaintiff’s claim of fraud is a letter from Phillip B. Knight to the city treasurer of Detroit, dated January 19,1940, which reads in part as follows:
“This is to signify that I am the owner of lots. * * #
“It is my desire that these properties be put up ■for sale in the forthcoming scavenger sale, as it is the only way I can clarify an inherited tax situation.”
The matter was referred to a circuit court commissioner who found that plaintiff had become the owner, of various tax titles, covering the property, by purchase at delinquent tax sales for the years 1921 through 1928; had served notice to all interested parties, and had recorded proof of service of such notices; that defendant Phillip B. Knight had purchased the lots from the Union Guardian Trust Company on August 3, 1934, and had received a deed from the Union Guardian Trust Company to one Frederick Pugh, Knight’s nominee, who deeded to Knight on November 5,1934, and that both deeds were recorded on October 26, 1939. Neither plaintiff nor Knight paid any taxes on the lots after their respective purchases and the State acquired title thereto, by reason of such nonpayment, on November 3, 1939. Subsequently, the State sold these lots on land contract at a scavenger sale to Knight as a former “owner.”
The commissioner found as a matter of law that Knight was an ‘ ‘ owner ’ ’ within the meaning of that term as used in the scavenger act, and that plaintiff was likewise an owner. The commissioner was not called upon to determine which party possessed the greater interest; but was required to make a finding only as to the allegation of Knight’s fraudulent act. As to this, the commissioner found that plaintiff’s charge of fraud was not substantiated by the evidence, nor could it be if Knight were an “owner” within the meaning of that term as used in the act.
Objections were filed by plaintiff and considered by the trial judge, who held that the commissioner’s findings of fact and law were correct. The trial judge, in arriving at this conclusion, said: .
“It is the opinion of this court, as it was the opinion of the circuit court commissioner, that there was no action or conduct on the part of the defendants Knight and wife that was fraudulent in law. The State of Michigan acted in full compliance with the statute governing such sales. The same was held according to law. All the duties and obligations imposed by the statutes were fulfilled and executed with the necessary regularity.”
The legal elements of fraud are stated in Candler v. Heigho, 208 Mich. 115, 121, as follows:
“ ‘The general rule is that to constitute actionable fraud it must appear: (1) That defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he thereby suffered injury. Each of these facts must be proved with a reasonable degree of certainty, and all of them must be found to exist; the absence of any one of them is fatal to a recovery.’ ” 20 Cyc. p. 13.
See, also, Mesh v. Citrin, 299 Mich. 527, 537. Measured by this rule, plaintiff’s evidence failed to make out a case of actionable fraud. Under the “scavenger act” as it existed when Knight wrote his letter to the city treasurer on January 19, 1940, he was an “owner” and, therefore, his representation was not fraudulent. The statute (Act No. 155, § 5, Pub. Acts 1937, as amended by Act No. 244, Pub. Acts 1939 [Comp. Laws Supp. 1940, § 3723-5, Stat. Ann. 1940 Cum. Supp. §7.955]) then read:
“The term ‘owner’ as used in this act shall mean the owner in fee, mortgagee, land contract vendee, or one having a substantial interest by way of actual investment in the property, priority to be given the one having the largest financial investment in the property. ’ ’
This statutory definition of “owner” was changed by section 5a of the act as added by Act No. 363, Pub. Acts 1941, but in the instant case the definition contained in the 1939 act controls.
We do not pass upon the ethics of the transaction. Knight did that which, by the statutes of this State, he was permitted to do, and we cannot hold that he was guilty of wrongdoing in exercising his rights as an “owner.” See Gledhill v. Fisher & Co., 272 Mich. 353, 364 (102 A. L. R. 1042).
The decree of the trial court is affirmed, with costs to appellees.
Stabb, Wiest, Butzel, Sharpe, and Boyles, JJ., concurred with Bushnell, J. | [
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Dethmers, J.
June 7,1946, the defendant entered into a land contract to sell a certain 10-acre farm in Eaton county to Orval and Elsie Ganger. By proper assignment the plaintiff herein has succeeded to all their rights, as vendee. On June 15, 1950, plaintiff received from the defendant a notice of forfeiture for nonpayment of an instalment of principal and interest,, and demand for possession. The defendant later refused to accept payment of the arrears and commenced an action in ejectment. Thereupon plaintiff filed the instant bill of .complaint in chancery to set aside the forfeiture, and to enjoin the ejectment suit. She paid into court $202, the 1950 arrears of principal and interest then due., and later paid into court the instalment of principal and interest required for 1951.
Issue was. joined, the court heard the proofs and entered a decree dismissing the bill -of complaint. Plaintiff appeals.
The land contract was for the principal sum of $2,500, of which $500 was paid down, the balance to be paid $100 or more annually on the principal, plus annual interest at 6%. Prom its inception, June 7, 1946, the payments were made by the original vendees, Mr. and Mrs. Ganger, according to contract until early in 1949 when Mr. Ganger died. The defendant (vendor) agreed with Mrs. Ganger to wait 90 days for the annual instalment due June 7, 1949, and at the end of that time, she being still in def ault, he started summary proceedings before a circuit court commissioner in Eaton county to terminate the contract. Mrs. Ganger was unable to pay, and the plaintiff paid up the $208 principal and interest then due, which redeemed from the summary proceedings, paid Mrs. Ganger $600 and paid up some other matters that Mrs. Ganger owed. On November 3, 1949, Mrs. Ganger assigned her interest as vendee to the plaintiff.
On June 1,1950, 6 days before the next instalment and interest of $202 would be due (if due June 7th) j plaintiff, who lived in Battle Creek, went'to the bank in Olivet, in Eaton county, near the 10-acre farm, and then to the 2 banks in nearby Charlotte, to make the annual payment. She did not find the contract in one of them, as she expected, was unsuccessful in trying to locate Mr, Shilts, the vendor, did not remember where his farm was. She went to Charlotte again on June 3d, attempted to make payment to the defendant’s attorney who had indorsed her payment of the 1949 instalment for Mrs. Ganger, was unsuccessful, went back to the Olivet bank and on June 14th asked Mr. Tyson, the vice-president, to accept the $202 in cash and give it to Mr. Shilts. The banker preferred that she leave her check instead of cash and she did that. Then Mr. Shilts refused to receive the'check, not on the ground that it was no good, or not a proper tender, but he told the bank officer that “the time had gone by” and he would not accept it. The next day plaintiff received from the defendant a notice of forfeiture and demand for possession.
She claims that under the circumstances equity should intervene to relieve her from the attempted forfeiture of her rights in the land contract and her investment therein. When she took the contract from Mrs. Ganger she made the first payment for her in 1949, $208, to defendant or his attorney in his office in Charlotte. At that time she told them she did not want to make payments to Mr. Shilts, she wanted to make payments in a bank. Mr. Shilts nodded assent. From June 1st to June 14th she made “about 10 trips” to Charlotte and Olivet, trying to make the payments. The contract itself did not indicate the address or place of residence of the vendor, nor did it indicate where the payments were to be made. While the contract declared that time should be deemed of the essence of the contract, it did not .specify any exact date on which the annual payments should be made. It merely required that the balance be payable “at the rate of $100 or more annually upon the principal,” and interest “payable annually” at 6% per annum. Assuming, as the trial court held, that the payments were due each June 7th, plaintiff on June 1st began efforts to make the 1950 payment, $202, and continued every reasonable effort to do so throughout, until she finally left her payment by check at the Olivet bank, to be given to Mr. Shilts. He refused it, on June 14th, 7 days after the first possible due date which this plaintiff could be supposed to meet. A week later Mr. Shilts started the ejectment proceedings. Had he started summary proceedings, as he had earlier started against Mrs. Ganger, redemption could follow and the arrears might be paid up. From ejectment, plaintiff’s remedy must be in chancery, to invoke equitable relief against forfeiture.
In the absence of a due date plainly fixed in the contract, and in the absence of a place of payment established therein, plaintiff made reasonable effort to comply with the requirements for payment of the 1950 instalment. The defendant makes no showing of harm or loss resulting from the short delay in making the instalment payment. His refusal to receive the check from the bank on the sole ground that it was too late obviated the need for making a more formal and legal tender of cash. The entire balance due the defendant on the contract was approximately $1,700. Plaintiff has paid the arrears into court, and also the 1951 requirement. She testified that she had sold the contract to a Mr. Bishop for $5,000, and that he had entered into possession, but had to be removed because she could not make good for his possession. While the contract declared that unless the vendees should comply with its requirements “at the respective times, and in the manner above limited and specified,” or forfeit all rights, no time or place of paying the annual instalment was therein “limited and specified.”
“Forfeitures are not favored in the law, and, while they may be contracted for, the provisions of contracts relied upon to establish them must be clear and unequivocal.” John v. McNeal, 167 Mich 148.
Appellee relies on some statements found in Elbom v. Pavsner, 225 Mich 213. However, the conclusion reached in that case fits into the circumstances of the case now before us:
“Under the circumstances shown here, where plaintiffs have offered within reasonable time to perform on their part and were refused, equity will not enforce a forfeiture against them.”
In Hubbell v. Ohler, 213 Mich 664, the vendee was in default in making a payment of interest and taxes in a land contract requiring payment of $100 and interest each year. When it was assigned to the plaintiff there was due $220. Plaintiff, to obtain the as signment, paid vendee approximately $1,000. Under circumstances quite comparable to the instant case, this Court in its decree relieved the plaintiff from the forfeiture.
“We have repeatedly held that equity will not render aid in enforcing forfeitures, but will interpose to relieve from them,” citing many cases. Hodges v. Buell, 134 Mich 162.
“Time cannot be made essential in a contract, merely by so declaring, if it would be unconscionable to allow it. Parties may stipulate to make it so, where the stipulation is reasonable; but, as in stipulated damages, if the stipulation is not reasonable, courts will not regard it.” Richmond v. Robinson, 12 Mich 193.
A decree may be entered in this Court setting aside the forfeiture, permanently enjoining the prosecution of the ejectment proceeding, and allowing the plaintiff 60 days to continue or complete performance of the requirements of the land contract as vendee in accordance with its terms. Costs to appellant.
Butzel, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
The late .Chief Justice North did not sit. | [
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Sharpe, J.
This is a proceeding to establish and have admitted to probate the last or destroyed will of James Kanera deceased. The deceased, whose wife died in the early part of 1945, lived in the village of Saugatuck, where he owned 3 cottages. He was childless, but was survived by a younger brother, John Kanera, and 3 sisters, Mary Penshorn, who lives in Chicago, Antoinette Day, who lives in Detroit, and Anna Kanera, who lives in Detroit in the winter and in Allegan county in the summer.
In August, 1945, Rose Sitzler became acquainted with deceased, and at his request she became his housekeeper.
On April 25,1949, Vernon Ten Cate, an attorney of Holland, Michigan, drafted a will for deceased, and retained an unsigned copy of it. This will was executed in Mr. Ten Cate’s office. Deceased took the executed will with him when he left Ten Cate’s office.
In the fall of 1949, deceased made arrangements with the Veterans Administration for a physical examination in Detroit. He came to Detroit in November, and stayed 2 days with his sister.
About the middle of November, 1949, Anna Kanera and her nephew drove deceased back to Saugatuck, where they left him in front of his cottage. "When deceased left for Detroit, Rose Sitzler left to visit her daughter. When deceased returned to Saugatuck he was taken to Douglas, and later to a hospital in Grand Rapids, where he died December 4, 1949.
On February 16, 1950, proponent, Vernon Ten Cate, executor named in the will, filed a petition in the probate court of Allegan county, alleging possession of a copy of the will, and petitioned to have proofs taken and the instrument admitted to probate as the will of deceased. The will in question reads as follows:
“Last Will and Testament
“I, James Kanera, of the village of Saugatuck, in the county of Allegan, State of Michigan, being of sound mind and memory, do make, publish and declare this to be my last will and testament, hereby revoking all former wills and codicils by me at any time heretofore made.
“First: I direct the payment of all of my just debts and funeral expenses as soon as possible after my death.
“Second : All the rest, residue and remainder of my property, of which I may die seized or possessed, or to which I may in any manner be entitled at the time of my death, I give, devise and bequeath to Vernon D. Ten Cate, of Holland, Michigan, as trustee, for and on behalf of Rose Sitzler, she to have the life use and income from my said estate, and in the fulfillment of the trust powers I hereby grant unto my said trustee the following powers :
“To demand, receive, compromise or adjust any right of action and any right or title hereby con veyed or hereafter acquired by my trustee; to bring or dismiss any action, suit or proceedings and employ counsel; to convert and reconvert, invest and reinvest, sell, exchange, lease, pledge or mortgage the whole or any portion of the property or funds held in trust; to alter, repair, rebuild or improve the buildings on the land now owned bj^ me or hereafter ■ acquired by my trustee; to pay taxes, assessments, insurance premiums and other expenses incident to the execution of the trust, including the compensation of the trustee; to make, sign, sell and deliver such instruments and to perform such other acts as may be required for the fulfillment of this trust, and to exercise any further or other powers necessary or convenient to enable him to perform his duties as such trustee, and such other powers as shall be given him by the laws of the State of Michigan; and I do order and direct that the said trust shall be dissolved upon the death of the said Rose Sitzler and the remainder of said trust fund be paid to the Veterans of Foreign Wars of the United States National Home.
••...................(L.S.)
at Eaton Rapids, Michigan.
“Third : I hereby nominate and appoint Vernon D. Ten Cate, of Holland, Michigan, executor of this last will and testament, and I confer upon my said executor power and authority to sell, lease or mortgage any and all real and personal estate for such price and on such terms as he may deem best for my estate, and in the execution of the trust hereinabove provided for.
“Fourth : I will and direct that any Federal or State taxes, either income, inheritance, or estate taxes of any kind or nature, either now imposed or which may after the date hereof be imposed or shall come due, shall be paid from my estate the same as administration expenses.
“In Witness Whereoe, I have hereunto set my hand and seal and declared this to be my Last Will and Testament this 25th day of April, 1949.
..............._.....(L.S.)”
On March 8, 1950, John Kanera filed objections to the granting of the petition as follows:
“That he objects to the grantin'g or allowance of probate to that certain instrument propounded by Vernon D. Ten Cate by petition of Vernon D. Ten Cate dated the 16th day of February, 1950, filed herein, for the following reasons and upon the following grounds:
“a. That said purported will was not executed as required by law.
“b. That at the time said instrument was purportedly executed by deceased, deceased lacked mental competency or capacity to make a valid will.
“c. That said instrument does not represent the will or desire of the said deceased, but was induced by fraud and undue influence practiced upon said deceased..
“d. That said purported will was intentionally destroyed and revoked by the deceased, and thereby is not a legal will of the deceased.”
Mary Penshorn, Antoinette Day, and Anna Kanera filed similar objections. Upon application of contestants the will was certified to the circuit court of Allegan county, where the case was tried before a jury, resulting in a verdict by the jury upholding the instrument offered for probate as the last will and testament of deceased.
It appears that at the close of plaintiffs’ proofs, defendants’ counsel made a motion for a directed verdict, alleging that proponents have not established that there was a last will. Decision on the motion was reserved under the Empson act. There after contestants moved for judgment notwithstanding the verdict. This motion was denied. Contestants moved for a new trial, giving the following reasons :
“Because the verdict of the jury therein is contrary to the great weight of the evidence.
“Because the court erred in charging the jury in substance that there was no presumption in the case to be considered by the jury that the will had been destroyed or revoked by the testator.
“Because the court erred in charging the jury, as follows:
“ ‘You are instructed, if you find in this case that James Kanera was not on friendly terms -with his sisters during the year 1949, after he had executed his will, and up until his death, then you may consider that fact as bearing upon the probability of his revoking his will, which gave them, that is his sisters, nothing and thereby leaving them three-: fourths of his property.’
“Because the court erred in charging the jury, as follows:
“ ‘Now members of the jury, you are instructed that there is no presumption in this case to be considered by you with reference to the destruction of the will in question. Where there is testimony in the case on the subject for and against any presumption that might otherwise exist disappears, a presumption may not be weighed against evidence. Yon are to consider the evidence offered on both sides and determine from such evidence whether James Kan-era did or did not destroy his will made on the 25th day of April, 1949; that is destroyed with the intention of revoking it.’
“Because the court erred in charging the jury, as follows:
“ ‘You are instructed that if you find that the contestants, or some of them, had opportunity to destroy the will in question either before or after the death of James Kanera, then you may consider their in terest in having the will destroyed, and while opportunity alone is not sufficient to prove that contestants did not destroy it, you may weigh such fact with the other proven facts in the case in determining whether or not they did in fact so destroy it.’ * * *
“Because the court erred in permitting the witness, Charles F. Adams, to testify, over the objection of counsel, as follows:
“ ‘Q. And will you tell us that nature of that home, what it is? * * *
“A. It is a homo for widows and orphans of members of the Veterans of Foreign Wars.
“Q. Of which war?
“A. That is all wars as long as they are a member of the Veterans of Foreign Wars organization.
“Q. ITow long has that home been in existence?
“A. 25 years. * * *
“Q. What does the home — what do they do for orphans and widows there ? * * *
“A. They take children, regardless of age, and keep them until they are self supporting.’ ”
The trial court denied the motion for a new trial and entered judgment upon the verdict.
Contestants appeal. In the case at bar it is established that James Kanera executed a will on April 25, 1949. The rule is well established that where a will which is known to have existed during the testator’s lifetime, and in his custody, cannot be found at his death, a presumption arises that such a will was destroyed by the testator in his lifetime with the intention of revoking it, and in such cases the proponents have the burden of producing evidence to overcome or rebut such presumption; see In re Keene’s Estate, 189 Mich 97 (Ann Cas 1918E, 367), In re Estate of Taylor, 271 Mich 404, In re Estate of Bernard Thomas, 274 Mich 10.
To rebut this presumption, proponents relied primarily upon declarations made by the deceased. Rose Sitzler. testified that deceased had declared many times, both before and after the execution of the will, and as late as November, 1949:
“Q. What, if any, conversation have you ever had with James Kanera concerning the disposition of his property?
“A. Well, he always told me that he would see that the orphans got something and he says, ‘You little orphan, I will see that you got something too. I will see that you got a roof over your head the rest of your life.’
“Q. You say he often talked about that ?
“A.. He did, very often.
“Q. .He talked about that before April 25, 1949?
“A. Yes, he did.
“Q. He talked about that after April 25,1949?
“A. Yes, he did. * * *
“Q. What, if any remarks did he ever make to you about your remuneration?
“A. Pie always says, ‘Rose, you don’t have to worry, I will always see you have a roof over your head.’ * * *
“Q. Did he make the remark during the year 1949?
"A. Oh, yes.
“Q. Can you fix the time in 1949 ?
“A. Well, when I asked him to come and make his home with my sister and myself then—
“Q. When was that now?
“A. That was during-the time that my brother-in-law passed away. That was between October 26th and November 2d or so.
“Q. Of 1949?
“A. That’s right.
“Q. All right. What did he say about that in November, 1949, or the latter part of October ?
“A. Well, he says, ‘I don’t see why you can’t stay here and I will see that you have a roof over your head.’ He says, ‘I don’t 'want you to leave.’ ”
John Janis, a neighbor pf deceased, testified that in September or October, 1949, the deceased stated:
“Some time during the late fall I saw and talked with James Kanera. I talked to him several times a week. He was a neighbor of ours. He lived just across the parking lot from the hotel where he had his cottages. I was working on the hotel some time; after the season was over we generally do some repair work, and I was working. I did see Jim over there some time. As to about when, that would be, I got to see him several times each week, whenever he was out and I continued to see him up until the time that I did leave Saugatuek. I had some conversation with him sometime on one of those occasions about his health and his property.
“Q. And when was that, about ?
“A. That was either the latter part of September or first part of October.
“Q. And will you give us that conversation that you had with him, as near as you can?
“A. Well, we were talking about it and he was not feeling well. He was telling me that his heart was bad and that he was quite a sick man and that he would have to take things easy as almost anything that would aggravate him or so, would be the end. And he did tell me — we were talking about his health and I says — I says, ‘Well, you are lucky you have somebody to take care of you.’ And he says ‘Yes’. And Rose was taking care of him at the time and he says he appreciated Rose being with him and that he said also that Rose would be taken care of.”
Mrs. Pearl Palermo, a daughter of Rose Sitzler, testified:
“Regarding what, if anything he said about my mother and about her care for him, he always said that he would see that she had a roof over her head and he couldn’t pay her wages, but that she could always file a claim and get paid that way.
“Q. You hear him say that, the last time you ever 'heard him discussing that, when was that?
“A. Well, the last time I saw Mr. Kanera was in ’49, the summer of ’49, and we were quite busy with the cottages.
“He had rented the cottage we were living in also to some girls. He had rented a sleeping room rather, and we were busy straightening up and cleaning up after the girls. They made quite a mess. And I says, ‘Gosh darn, I would be darned if I would do this for nothing.’ And Jim says, ‘Well, I haven’t any money.’ You know I mentioned about money, and I said, ‘I wouldn’t work this hard for nothing.’ I said, ‘Mum, you are a fool working for nothing.’ I said ‘housekeepers are getting good money in the city.’ And Jim says, well, he didn’t like that. I guess, you know, it hurt his feelings. And Jim says, ‘You know I can’t pay your mother, pay Mum, but I need her here.’ I like Jim too, he was a nice friend. And he says, ‘The only thing I can do for your mother is to see she has a roof over her head and that she files a claim for wages after I go.’ ”
J ohn Kanera was called by proponents for cross-examination. He testified that deceased told Mm he destroyed the will, and later testified that he saw deceased throw the will in the stove.
Proponents also produced evidence to show that contestants had an opportunity to destroy the will after the death of deceased, if it was then in existence, as 2 of deceased’s sisters lived in the cottage the deceased had occupied as a home prior to his going to the hospital, and that after the funeral J ohn Kanera opened the bag where deceased had placed the will.
Evidence was also introduced by proponents that deceased did not like Ms brother and sisters. Rose Sifczler testified:
“Jim did say, T wish those girls would leave me alone.’ And they were interfering with Ms business too much, telling Mm how to live, trying to live his life for him. This is conversation of Jim. As to what Jim told me about his sisters, he says he wished they would leave him alone. He says, ‘I am getting along all right. I wish they would stay out of my life.’ Pie says, ‘Whatever I have got I have earned by myself and I don’t owe them anything.’ James hasn’t said anything much about John. But he was peeved when John was going to move because he would always move out for the fall and then the place would be empty all winter so he said, well, he was really through with him when he moved with him the last time. He says, ‘I am through with him now.’ Regarding what ill feeling existed between James Kanera and me prior to and at the time of my departure from his household on November 14, 1949, we parted friends. There was no ill feeling whatsoever. I never received any remuneration whatsoever from James Kanera for the time that I served at that place.”
Contestants offered evidence to the effect that deceased told them that he had burned the will. Considering all the circumstances of this case, we are of the opinion that there was evidence for a jury’s consideration that deceased had not destroyed the will. The court was not in error in failing to grant contestant’s motion for a directed verdict.
Contestants urge that the court was in error in giving the following instruction:
“Now members of the jury, you are instructed that there is no presumption in this case to be considered by you with reference to the destruction of the will in question. Where there is testimony in the case on the subject for and against any presumption that might otherwise exist disappears, a presumption may not be weighed against evidence. You are to consider the evidence offered on both sides and determine from such evidence whether James Kanera did or did not destroy his will made on the 25th day of April, 1949; that is destroyed with the intention of revoking it.”
In Gillett v. Michigan United Traction Co., 205 Mich 410, we said:
“It is now quite generally held by the courts that a rebuttable or prima facie presumption has no weight as evidence. It serves to establish a prima facie case, but if challenged by rebutting evidence, the presumption cannot be weighed against the evidence. Supporting evidence must be introduced, and it then becomes a question of - weighing the actual evidence introduced, without giving any evidential force to the presumption itself. In 1 Elliott on Evidence, § 91, p 114, it is said:
“ ‘It (the presumption) may be directly rebutted by such evidence, or it may be shown thereby that it was never applicable to the particular facts, for it will be found that presumptions are usually very general in their nature, and lose their forcé and application when the specific facts of the case are shown;’
—and further (section 93, p 116):
“ ‘A presumption operates to relieve the party in whose favor it operates from going forward in argument or evidence, and serves the purpose of a prima facie case until the other party has gone forward with his evidence, but in itself, it is not evidence, and involves no rule as to the weight of evidence necessary to meet it. * * * It is sometimes said that the presumption will tip the scale when the evidence is balanced. B.ut, in truth, nothings tips the scale but evidence, and a presumption, being a legal rule or á legal conclusion, is not evidence. * * * It is'not probative matter, which may be a basis of inference and weighed and compared with other matter of a probative nature.’ ”
And whether or not a presumption is rebutted presents a jury question; see In re Taylor’s Estate, 271 Mich 404.
In our opinion there was testimony introduced by proponents that overcame the presumption. The court was not in error in giving the above-quoted instruction.
Contestants also urge that they are entitled-to a new trial, as the verdict was against the great weight of the evidence. In the case at bar there was evidence presented to the jury that testator did not want his brother and sisters to receive his property, that he had made provisions for Rose Sitzler, and that contestants had an opportunity to destroy the will. In Saginaw Milling Co. v. Mower, 154 Mich 620, we said:
“3. The determination of the essential question of fact * * # depended upon the conclusion the jury should reach as to their credibility * * * and although we must disagree with their conclusion, we cannot say that it is not based upon substantial testimony, nor invade their province of weighing conflicting testimony by determining that plaintiff’s testimony was so contrary to the weight of the evidence as to justify us in reversing the ruling of the trial judge.”
We conclude that the verdict of the jury was not against the great weight of the evidence. The court was not in error in denying a new trial.
Contestants also urge that the testimony of Charles-F. Adams, regarding the Veterans Home, was improper and prejudicial.
It appears that during the trial Attorney Ten Cate testified as to deceased’s interest in the Veterans Home:
“He told me about the Veterans of Foreign Wars home at Eaton Rapids. I remember that he mentioned that it was a very fine home and that it was for the widows and orphans of veterans and that he had heard about it and he went on at some length to tell me what a fine place it was, and that was where he wanted his property to go after Mrs. Sitzler was through with it.”
The trial court in denying contestant’s motion for a new trial stated as follows:
“14. Testimony concerning the activities of the Veterans Home at Eaton Rapids was material to the issues in this case for the reason that decedent’s interest in the Home as a veteran himself, and the inference of his continued interest in the Home, in the absence of any testimony concerning the change in his attitude, could properly be considered upon the issue of a likelihood of revocation of a will that provided substantially for the Veterans’ Home.”
Under the circumstances of this case, it was not prejudicial error to permit the jury to consider the testimony concerning the Veterans’ Home.
Contestants also urge that it was error to admit evidence of an attempt by John Kanera to settle the case with Rose Sitzler. It appears that John Kanera was called as a witness by proponents for cross-examination. He testified:
“When I went over to Rose’s place there, and her sifter’s place at Nunica, Rose’s sister was there. And I wanted to talk privately with Rose. If I was just going to ask her about her dishes, the reason I was going to talk privately at Rose’s was after I knew that there was going to be a court trial, I thought maybe she would have some suggestion to make that could avoid that. I knew she had an attorney at that time. I don’t know whether I knew who her attorney was at that time or not. I didn’t make any effort to find out; I never asked her.”
Counsel for contestants objected to receiving this evidence for the reason that it was prejudicial and improper. We note that no reason was given as to why the testimony was prejudicial and improper, nor was any request made to strike it from the record. In Hynes v. Hickey, 109 Mich 188, we held that an objection to a question as “incompetent” was too general for consideration on appeal. In Mulliken v. City of Corunna, 110 Mich 212, we held that an objection to testimony that was not responsive to the questions asked cannot be raised on appeal where no motion was made to strike it out. In Weiser v. Welch, 112 Mich 134, we held that an objection that an incompetent answer was received to a proper question will not be considered on appeal in the absence of a motion to strike out the answer. See, also, Renders v. Grand Trunk R. Co., 144 Mich 387, and In re Paquin’s Estate, 328 Mich 293.
We find no reversible error and the judgment is affirmed, with costs to proponents.
Dethmers, Btjtzel, Carr, Btjshnell, Boyles, and Reid, JJ., concurred.
The late Chief Justice North did not sit.
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ShaRpe, J.
Defendants, Stanley M. Barr and Jim Stankye, appeal from 2 judgments in favor of plaintiffs, Catherine Hodgdon and Fred Hodgdon. The judgments are for damages for personal injuries suffered by Catherine Hodgdon in a collision with a taxicab at or near the intersection of Van Dyke and Gratiot avenues in the city of Detroit, on August 27, 1948, about 10:50 a. m.
Gratiot avenue runs in a northeasterly and southwesterly direction, while Van Dyke avenue runs in |a more or less northerly and southerly direction, j There is a traffic light at each corner of the intersecjtion. Yan Dyke avenue has a width of 47 feet; ! Gratiot avenue has a width of 90 feet, with 2 sets i of streetcar tracks in the center of the street.
There is a crosswalk extending across Gratiot avenue. The northerly end of the crosswalk begins approximately 42 feet west of the west curb line of i Yan Dyke avenue, and runs in a southeasterly direction. The crosswalk is perpendicular to the northjwest curb of Gratiot avenue until it reaches the center of Gratiot avenue, when it follows a line .parallel to the curb line of Van Dyke avenue. The crosswalk is approximately 11 feet wide. There is ■a safety zone located to the south of the intersection on Gratiot avenue next to the more southeasterly set of streetcar tracks. The safety zone is just south ,of the crosswalk.
Plaintiff, Catherine Hodgdon, left the Michigan .Bell Telephone office on the northerly side of Gratiot avenue at a point 5 stores west of the intersection .of Van Dyke, with the intention of going to the safety zone to take a Gratiot avenue bus. She walked 'towards Yan Dyke on the northerly side of Gratiot avenue to a point at or near the crosswalk. She made observations of traffic conditions on Gratiot avenue, and with the green light in her favor started to cross the northerly half of Gratiot avenue at a point about 42 feet west of Yan Dyke avenue.
About this time a panel truck was parked on the westerly side of Yan Dyke and north of Gratiot avenue, waiting for the green light; behind the panel truck was a city bus waiting to cross Gratiot avenue- and proceed in a southerly direction on Yan Dyke; behind the city bus was the Checker cab driven by defendant, Stanley M. Barr. When the light turned green for passage on Yan Dyke avenue, the truck proceeded in a southerly direction and turned west on Gratiot avenue. The city bus proceeded on and across Gratiot avenue. Defendant, Stanley M. Barr, moved up behind the truck, followed it around the corner, then stopped when not completely around the corner, then pulled o.ut and proceeded to the left • of the truck and went far enough around the corner to clear the intersection. When the truck approached the crosswalk it stopped and defendant Barr did ;likewise, as people were crossing in a southerly direction on the crosswalk. While making the crossing plaintiff passed in front of a vehicle that was stopped to let pedestrians cross on the crosswalk. !She passed in front of the truck heretofore mentioned, which was also stopped. After passing the second vehicle she was struck by the cab driven by defendant Barr. At this time the cab was traveling at a speed of not to exceed 8 to 10 miles per hour. At the time plaintiff was injured she had reached a, point from 5 or 6 feet to 12 feet north of the northerly car track on Gratiot avenue.
Plaintiff was seriously injured. The cause came-' on for trial, the issues were submitted to a jury who returned a verdict of $10,000 for Catherine Hodgdon, and $2,000 for Fred Hodgdon, her husband, for ex-, penses incurred.
During the trial and at the close of plaintiff’s testimony defendant made a motion for a directed verdict on the theory that plaintiff was guilty of contributory negligence, and a lack of evidence showing defendant Barr guilty of any negligence which was a proximate cause of the injury. The trial court took the motion under advisement under the statute and later denied it. Defendant appeals and urges that the trial court was in error in failing to grant his motion for a directed verdict at the close of plaintiff’s proofs.
The record shows that when' plaintiff entered Gratiot avenue on the crosswalk she had the green light in her favor. Before entering Gratiot avenue she made observations for approaching traffic to her left and to her right. Other pedestrians were crossing ahead of her on the crosswalk. Having in mind that PA 1927, No 318, § 18(a), as amended (CL 1948, §256.318 [Stat Ann 1947 Cum Supp §9.1578]), provides that in making a right turn a driver shall “approach such intersection in the lane for traffic nearest to the right-hand side of the highway, and in turning shall keep as closely as practicable to the right-hand curb or edge of the highway” and that the Traffic Ordinance No 115-D, §§ 14(b), .16, of the city of Detroit, provide:
“Seo. 14(b). Green alone, or ‘go’. Vehicular traffic facing the signal may proceed straight through or turn right or left unless a sign at such place prohibits either such turn: Provided, that vehicular traffic shall yield the right-of-way to other vehicles ¡lawfully within the intersection and to pedestrians lawfully within a crosswalk at the time such signal is exhibited. Pedestrians facing the green signal may proceed across the highway within any marked or unmarked crosswalk. * * *
“Sec. 16. Operators may make a right turn at all times from the moving traffic lane nearest the right curb when proceeding with traffic, except where prohibited by traffic control devices or traffic officers, provided that the operator shall yield the right of way to pedestrians lawfully within the crosswalk. The operator shall not make a right turn when facing a red traffic control signal unless such turn is permitted by right-turn arrow, or other traffic control devices.”
We are of the opinion that the contributory negligence of plaintiff, Catherine Hodgdon, presented a question of fact to be submitted to -the trier of facts.
On th¿ question of the negligence of defendant-Barr, the court gave the following instructions:
“What are the duties that were imposed upon these parties ? I think the logical order to take up for that discussion is what was the duty of the driver' of the taxicab, Mr. Barr. He had imposed upon him 3 duties which I think are involved in this case. First, the State statute provides that when a driver of a motor vehicle is making a right-hand turn at an-intersection, he must make it from the right-hand avenue or traffic lane of the street off from which he. is going,_ and he must make it into the right-hand lane available to traffic on the street into which he is turning. Therefore, in this case, to apply this, case to the undisputed facts as set forth by the de-t fendant, he was going south on Yan Dyke avenue.He was behind a truck, and on his testimony, a city bus. They stopped on a red light at the north line-of Gratiot avenue. The light changed. The truck, ahead turned to the right, and in turning to the right there is evidence to indicate that it had to move out from the curb sufficiently far to miss another vehicle' that was parked at the curb between Yan Dyke avenue and the east line of the crosswalk marked by that line on the pavement. So that the truck turned to the right into what we might call the second lane, under the defendant’s testimony, of traffic. The bus proceeded directly south on Yan Dyke, and went out of the picture as it did so. It was then the duty of the defendant driving his taxicab to follow the truck so as to get into the right-hand lane'of traffic that was open for use on Gratiot avenue going west. The truck went into that lane. Under the testimony, it did subsequently cross the crosswalk for pedestrians. And, under the State statute it was the duty of the taxi driver to follow the truck in that first lane to the south of the parked car at the north curb of Gratiot avenue. There is no dispute in the testimony that the taxi driver did not do that. On his-own testimony, because some cars honked at him from behind, he went past the rear of the truck which was ahead of him, and then proceeded to make his turn into Gratiot avenue. Now that I consider to be a violation of the duty which is imposed upon him by a State statute, and a violation of a duty imposed by a State statute is in and of itself negligence.
“In further consideration of exactly what was done by the cab driver, Mr. Barr, is the testimony as to where the cab stopped after either it ran into Mrs. Hodgdon, or Mrs. Hodgdon walked into it, which represents the difference between the plaintiff’s testimony and the defendant’s testimony, because that has a bearing upon the closeness with which the defendant, Barr, followed out his statutory duty to make his turn into the right-hand available lane of traffic. The plaintiff testified that when she was struck she was 5 or 6 feet north of the north rail of the streetcar track. .That would put her something like 30 feet or more south of the north curb, and that would put her well out of the second traffic lane going west on Gratiot avenue. The witness Nitz testified that he thought that she was about 12 or 15 feet north of the north rail. The defendant, Barr, testified that his taxicab was at a standstill when Mrs. Hodgdon ran into it. I take it that his left-hand front wheel was about a half a foot or a foot from the north rail of the streetcar track, and that would put the cab, — the right-hand side of the cab, — something like 30 odd feet from the north curb, exactly where Mrs. Hodgdon said that she was struck. The-witness, Mrs. Jacobson, who was a passenger in the cab, testified that the cab was 2 or 3 feet north of the north rail. Therefore, there is practically no dispute in the testimony that at the time when Mrs. Hodgdon and the cab came into collision the cab was anywhere from 23 feet south of the north curb of Gratiot, to 30 odd feet south of the north curb of Gratiot. In any event, it was farther south than the State law says it had a right to be in -making a right-hand tp,rn. From the undis puted testimony in the ease, it was the duty of the driver of the taxicab to follow the truck that was ahead of it down the first available traffic lane on the north side of Gratiot avenue. Therefore, on that consideration of that duty, the testimony is conclusive, because there is no dispute about it, that the defendant, Barr, was guilty of negligence because he did not observe the express provisions of a State statute which is part of the State motor vehicle law, and which was in effect at that time and still is in effect.
“That consideration, of course, does not conclusively close the matter as far as he was concerned, because the question of proximate cause is still to be considered. The second duty that he owed was a duty under a city ordinance. If you violate a city traffic ordinance, that violation is not conclusive that you have been negligent the way that a violation of a State statute is; but it is evidence that you have been negligent; and it is evidence from which a jury is justified in finding that you have been negligent. The city ordinance is adopted in accordance with a grant of power from the State legislature to cities to impose traffic regulations. Those traffic regulations must be consistent with the State law. Therefore, the traffic regulation I am about to speak of must be construed as being consistent with the State law I have just been telling you about, which re-' quires people making right-hand turns to stay in the nearest available right-hand lane. The city has laid out, and rightfully, a traffic lane for pedestrians to go across Gratiot avenue from north to south. That traffic lane, as far as its easterly line is concerned, leaves the sidewalk on the north side of Gratiot avenue at a point about 42 feet distant from the junction of the curb line of Yan Dyke and' Gratiot. It runs at right angles across Gratiot avenue. Van Dyke does not run at right angles across Gratiot. It enters Gratiot at a long oblique angle. Much stress has been laid upon that distance of 42 feet from Van Dyke avenue to the pedestrian-cross walk. It' is to 'be remembered, and it is in evidence upon the map which has been so much before you, that the cast line of the crosswalk converges toward the line of the Van Dyke curb; that is, it converges towards the intersection of Van Dyke and Gratiot, and while it is 42 feet from the northwest curb of Gratiot and Van Dyke at the curb line, when the crosswalk reaches the line of the north streetcar rail, according to the map drawn to scale, the line of the crosswalk is only 10 feet from the west line of Van Dyke; and the distance from the intersection at the point where the' collision took place, somewhere between 12 and 5 or 6 feet north of the curb line, instead of being 42 feet, is, by measurement on the map not more than 12 or 13 feet distant from the intersection, about the length of a taxicab.
“The ordinance that I have reference to is one passed by the city council of the city of Detroit. Vou have heard it read, 'and it provides that at intersections where there are traffic lights- vehicles may make right-hand turns on the green light when, and only when, they can do so without interfering with traffic.. ‘Traffic’ means not only other vehicular traffic. It means also pedestrian traffic, because it is to be borne in' 'mind that even though people are walking, upon the streets of the city, they are still citizens, and they have .the right to have other people pay attention to their safety, and they have as good a right upon the streets as drivers of automobiles do.
■“If this cab driver made- a right-hand turn at a time that there was danger that he would interfere with traffic on the crosswalk, he was doing something that the city ordinance forbids. That there was danger of interfering' with pedestrian traffic on the crosswalk'is evidenced by the fact that Mrs. Hodgdon.did come in contact with the right front fender of his taxicab. That is evidence from which you, in connoction with the ordinance, may, if you see fit, find that he was guilty of negligence in the way he made a right-hand turn down Gratiot avenue; and it is evidence from which you would have a right to conclude that he did undertake to make a turn at a time when he could not do so without interfering with other traffic on that intersection.
“The third duty that every automobile driver owes at all times is to keep a sufficiently sharp lookout ahead of him so as to stop his car within the assured clear distance ahead. That is a duty which means that he must be vigilant enough to see what there is to be seen. That he may not see it is no excuse. If it was visible, and if it was something that was likely to get into the line of his traffic, it was his duty to see what was there to be seen; and he is held liable for any violation of that duty.
“Now as to this case, under that duty imposed upon all automobile drivers upon all highways, is there any evidence of a failure on his part to perform that duty? I think that the-re is. .He testified-that, the first time that he saw Mrs. Hodgdon was when she stepped out from in front of the truck which was to his right. Mrs. Jacobson testified that she saw Mrs. Hodgdon on the other side of the truck while Mrs. Hodgdon was on the curb, arid she saw her step down from the curb, and she saw her upper half as she walked along from in front of the'truck, passing from in'front of the truck. If Mrs. Jacobson saw that, Mr. Barr could have seen it; and if he did not see it, he is guilty of negligence for not seeing it.
, “On these 3 points—in the first place, under the undisputed testimony offered by the defense, he is guilty of negligence as a matter of law because he did not stay in the proper lane of traffic in making a right-hand turn. The evidence is such that the jury would be warranted in finding that he would be guilty of negligence for failing to observe the traffic ordinance as to the right to make a right-hand turn when the green light is in his favor, which is limited to making a right-hand turn when he can do so without interfering with other traffic. And, the evidence is such as to warrant a finding at your hands, if you see fit, that he is guilty of negligence in riot keeping a sufficiently keen outlook ahead of him as a reasonably prudent man would have done under the circumstances as they existed at that time and place. I charge you as a matter of law that on his own testimony he is guilty of negligence for his violation of this statutory duty. You would be justified in finding him guilty of negligence for the violation of the other 2 duties, if you find it necessary to do so, or if you see fit to do so. That is up to you when you come to consider the questions in the case.”
Defendant urges that the trial court was in error in charging the jury that defendant Barr was guilty of negligence as a matter of law, in violating the statutory provisions relative to making a right turn at an intersection. In order to get a clear picture of what actually occurred it is necessary to follow the movement of defendant Barr from the time he stopped on Yan Dyke to await a green light, to a point on Gratiot avenue where the accident actually occurred.
As defendant Barr traveled south on Van Dyke he stopped behind a Detroit street railway bus and in front of this was a panel truck. As the lights turned green for traffic to move across Gratiot avenue, the panel truck turned right on Gratiot avenue and stopped before it came to the crosswalk. Defendant Barr followed the panel truck as it made its turn on Gratiot avenue, and when the truck stopped, the rear end of defendant’s cab extended into Yan Dyke avenue. Because defendant’s cab interfered with traffic going south on Yan Dyke avenue, he, defendant Barr, eased around the truck on its left side and stopped his cab with its front end about midway of the truck, and at a distance of 2 or 3 feet from it.
At this time other pedestrians were passing in a southerly direction across Gratiot avenue on the crosswalk. Plaintiff, Catherine Hodgdon, also was crossing the northerly half of Gratiot avenue at a distance of from 3 to 6 feet west of the crosswalk. When defendant brought his cab to a stop its left front wheel was within 6 inches of the northerly rail of the streetcar track, and across the crosswalk to such an extent that it came in contact with plaintiff, Catherine Hodgdon. It clearly appears that defendant Barr, in his operation of the cab, violated the city ordinance in failing to yield the right-of-way to pedestrians crossing on a crosswalk with the green light in their favor, but violation of a city ordinance is not negligence per se. It is, however, evidence of negligence for presentment to the trier of the facts. See Scott v. Dow, 162 Mich 636, and Rotter v. Detroit United Railway, 205 Mich 212.
Defendant urges that the court was in error in giving the following instruction to the jury:
“It was the duty of the driver of the taxicab to follow that truck that was ahead of it down the first available traffic lane on the north side of Gratiot avenue. Therefore, from that consideration of that duty, the testimony is conclusive, because there is no dispute about it, that the defendant, Barr, was guilty of negligence.”
It is apparent that the above instruction was inspired by CL 1948, § 256.318, which provides that in making a right turn a driver should — “approach such intersection in the lane of traffic nearest to the right-hand side of the highway, and in turning should keep as closely as practicable to the right-hand curb or edge of the highway.”
Defendant Barr testified:
“I was to-the left of the panel truck. The crosswalk, — I would say, at the time I did that I was about 25 or 30 feet. The truck stayed there. Then I waited until the street cleared of pedestrians, and pedestrians were going across both ways. * * *
“Q. How far back of the panel truck were you? Assume my finger is the panel truck, and you are stopped here. How far were you back of the panel truck ?
“A. My front end was about the middle.
“I was at a dead stop. I looked to the right. Then the panel truck began moving, and I looked to the left, and started. Then the panel truck was moving, and then I started. Then I looked again to the right, and I saw he was beginning to stop. The panel truck. At around the crosswalk he started to stop, and so did I. I looked and I saw this lady come out from in front of the truck. I had not seen her before. She was coming from around the front of the ■truck. I was going at that time 8 or 10 miles an hour. When I saw the lady come from in front of the panel truck, I immediately applied my brakes and swung to the left. The panel truck got just about across before he started to stop. He was astride the crosswalk, across the crosswalk. When I saw he proceeded and saw he stopped-on the crosswalk, I was 3 or 4 feet west of the crosswalk.
“I did not see this lady at any time up to the time she had appeared in front of the panel truck.
“Q. Did you hit her or did she hit you?
“A. I would say she walked into the right-hand corner of the cab. She fell immediately and then ‘rolled. She was kind of rolling when I got out of the cab. I am absolutely sure I was not exceeding 8 or 10 miles an hour. I came to a dead stop because I saw her. * # *
“The Witness: I was right on the curb before J started to make a turn, 3 or 4 feet from the street curb. After I rounded the corner I was about 12 or 13 feet.
“The Court: The right-hand side of your cab was ■ about 12 or 13 feet south of the north curb of Gratiot avenue ?
“The Witness: After I completed the turn and stopped. That is when I came to a stop.,
“Q. When that was 13 feet, was the panel truck to the right of you,?
“A. To the right. Í was trying to get distance between the panel truck and me.
“There was the panel truck and me, and that is the way I figure the distance.”
LaVerne Nitz, a witness produced by plaintiff, testified:
“Q. (By Mr. McBrearty): Tell us, in your own words, how the accident happened. Tell us what you saw.
“A. I was standing in the' safety zone, going east, waiting for a streetcar on G-ratiot avenue. Just before the streetcar came a lady was stepping off the curb traveling from north to south. There was a truck parked next to the north curb obstructing her view from crossing the street; After she approached ,3 or 4 paces from the curb she looked to the right— her left, to see if there was approaching traffic coming. At that point a taxicab was coming around the corner. She varied to the west of the crosswalk as she was walking. In my opinion they seemed to both hesitate. In other words, the cab slowed down, and then she proceeded too. Then they both had the same idea, and the taxicab driver stepped on the gas, and she walked ahead. I couldn’t tell you whether she walked into the right side of the cab, or if the cab struck her, because my vision was obstructed.
“Q. When you say Tight side,’ you-mean the right corner? ]
“A. The right-front fender of the cab.
“Q. You don’t know whether she wálked into it or whether the cab’s right-front fender hit her?
“A. I couldn’t say that, because the side of the cab was obstructing my view.
The witness Nitz also testified that the following statement, given by him and dated April 26, 1950,' was true:
“LaVerne Nitz, 14379 Dacosta. Accident, Van Dyke and Gratiot. On August 27, 1948, about 10:50 a.m., I was standing in the eastbound safety zone at Gratiot and Van Dyke when I witnessed an accident in which a Checker cab struck a woman pedestrian with its right-front fender and the woman fell to the pavement, falling to the right of the cab and still in front of the cab but to the cab’s right when the cab came to a stop. The woman was not knocked any distance. She just fell down when struck. The light was green for Van Dyke when this happened and the woman started across Gratiot from the north curb and a short distance west of the westerly crosswalk line. She was not between the crosswalk lines when struck. I had noticed this Checker cab pull around the corner off of Van Dyke making a right turn to go west on Gratiot and when the woman was struck the cab was not traveling faster than 8 miles an hour.
“There was a truck to the right of the cab and it was about a half-width of a car from the north curb and was headed west, and whether the truck was in motion before the woman walked in front of it, I couldn’t say, but I thought that the woman was going to walk into the front of the truck. She was that close to the front end of the truck, and when I saw the cab going by the truck on its left, I hollered, ‘Look out,’ as I thought she would be struck. The traffic was moving on Van Dyke when she was struck, and I don’t know where the truck came from.”
It is signed, “LaVerne N. Nitz.”
There is evidence in this case that the distance from the westerly edge of Van Dyke measured on the northerly curb line of Gratiot avenue to the crosswalk is 42 feet, and that the width of the crosswalk is 11 feet; that the easterly edge of the cross walk at its intersection with, the northerly streetcar rails is approximately 13 feet from the westerly line of Van Dyke avenue; that the point of impact between plaintiff, Catherine Hodgdon, and the cab is a distance of from 5 or 6 feet to 13 feet north of the northerly rail of the car track; that at the moment of impact plaintiff, Catherine Hodgdon, was 5 or 6 feet west of the crosswalk, and defendant Barr was traveling 8 to 10 miles per hour. There is also evidence that he had brought his cab to a stop at the moment' of impact. There is evidence that as defendant Barr made a westerly turn on Gratiot avenue, there was a truck standing and facing westerly on Gratiot avenue at a distance of about a half-width of a car from the north curb of Gratiot avenue.
It is evident that the trial court in instructing the jury that defendant Barr was guilty of negligence as a matter of law, had in mind that it was the duty of defendant Barr to keep behind the panel truck as it made a right turn on Gratiot avenue.
“It was then the duty of the defendant driving his taxicab to follow the truck so as to get into the right-hand lane of traffic that was open for use on Gratiot avenue going west.”
The statute as above quoted, provides that a driver making a right-hand turn at-an intersection shall approach such intersection in the lane for traffic nearest to the right-hand side of the highway, and in turning shall Iceep as closely as practicable to the right-hand curb or edge of the highway.
There is evidence from which a jury could find that it was not practicable for defendant to go to the right of the panel truck, as there was some testimony that the distance between the curb and the panel truck was about a half width of a car. There is evidence that when defendant Barr was behind the panel truck while negotiating the turn, the rear end of his taxicab extended into Van Dyke avenue, and interfered with traffic going south on Van Dyke avenue. Under these circumstances the action of defendant Barr in making a left turn around the panel truck presented an issue of fact as to whether he violated the statute by failing to get into the right-hand lane of traffic, or whether he kept as close as practicable to the right-hand curb in making the turn into Gratiot avenue. In view of our decision on this issue we do not find it necessary to discuss other issues presented. ' •
The judgment is reversed and remanded for a new trial with costs to defendant.
North, 0. Ji, and Dethmers, Butzel, Carr, Bushnell, Boyles, and Reid, JJ., concurred.
CL 1948, § 691.691 et seq. (Stat Ann and Stat Ann 1951 Cum Supp § 27.1461 et seq.).—Reporter.
See CL 1948, § 256.305 (Stat Ann 1947 Cum Supp § 9.1565).— Reporter. | [
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Boyles, J.
This is an appeal from a decree entered in the circuit court in Yan Burén county in chancery granting to plaintiff prior rights as to all of the defendants, under a labor and material lien. The court decreed foreclosure of plaintiff’s lien and sale of the property involved, to pay plaintiff for work performed and material furnished by him on certain property of the defendant Gorden J. Miller. The defendant Michigan Clifton Engineering Corporation, a similar lienholder whose rights are thus subordinated to the rights of the plaintiff, appeals and is the sole appellant.
In 1947, the defendant Gorden J. Miller, then the owner of certain real estate in Van Buren county, started to build a race track on his land and contracted with plaintiff to build the race track and auxiliary buildings. This work was commenced on June 10, 1947, and completed July 24, 1947. Plain tiff was unable to collect the amount owed him by Miller and filed a mechanic’s lien in Van Buren county on September 18, 1947. Numerous other liens upon Miller’s property were likewise filed by other parties, including the defendant and appellant Michigan Clifton Engineering Corporation. All defendants in this cause, except the engineering corporation, have defaulted either by operation of law or by stipulation. Miller had contracted with the defendant engineering corporation to install the lighting system for said race track. When the work was completed Miller failed to pay the defendant engineering corporation some $8,100 for labor and materials upon that contract, the work for which was begun in April of 1947 and completed on July 1, 1947. On August 7, 1947, said defendant engineering corporation filed its mechanic’s lien. Two weeks later said defendant engineering corporation started proceedings at law by attachment against Miller’s land to collect its claim, levy was made on August 21, 1947, and judgment in attachment was rendered on September 25, 1947. To enforce this judgment, execution sale was had of Miller’s properties on December 15, 1947, and the engineering corporation purchased said plant at the sale, for the amount of its judgment plus interest and costs.
On July 29, 1948, within the year allowed by the mechanics’ lien law, plaintiff filed this bill in chancery to have his lien declared to have priority as against the engineering corporation’s judgment in attachment, and the execution sale, as well as against all other mechanics’ liens on file; and for the enforcement of his lien filed on September 18, 1947. This lien, it will be noted, was filed subsequent to the start of the attachment proceedings but prior to. the sheriff’s sale.
Miller’s equity of redemption from the aforesaid sheriff’s sale was not exercised, and expired on December 15, 1948. On February 10, 1949, the circuit court for Van Buren county entered the aforesaid decree in this case, declaring a lien in favor of plaintiff in the sum of $11,487.45; directing the defendants to pay that amount to plaintiff, plus interest from July 24, 1947, on or before 10 days; and decreeing that otherwise the premises be sold to satisfy said lien. It is from that decree that this appeal is brought before us by the defendant Michigan Clifton Engineering Corporation.
The issue raised is one of priorities. Does the plaintiff, who foreclosed his mechanic’s lien in accordance with the statute in the case made and provided, have priority over another mechanic’s lien-holder. who did not foreclose its lien within the 1-year period from date of filing but commenced proceedings at law, took a judgment, and obtained a sheriff’s deed after the work of plaintiff was commenced?
Appellant engineering corporation took no steps to foreclose its mechanic’s lien, and as a result the lien was lost by lapse of the statutory time for its enforcement. The rights granted under the mechanics’ lien statute extend for a 1-year period only.
“The several liens herein provided for shall continue for 1 year after such statement or account is filed in the office of the register of deeds, and no longer unless proceedings are begun to enforce the same as hereinafter provided.” CL 1948, § 570.9 (Stat Ann § 26.289).
Also, see L. J. Mueller Furnace Co. v. Wayne Circuit Judge, 226 Mich 672; Fox v. Martin, 287 Mich 147.
Mechanics’ liens are given priority over other types of liens and encumbrances by the above statute, as follows:
“Third, They shall be preferred to all other titles, liens or incumbrances which may attach to or upon such building, machinery, structure or improvement, or to or upon the land upon which they are situated, which shall either be given or recorded subsequent to the commencement of said building or buildings, erection, structure or improvement.”
Thus the statute expressly declares that plaintiff’s lien shall have priority over any rights of the appellant engineering corporation which attached subsequent to the commencement of plaintiff’s work. The decree entered in plaintiff’s favor in the court below merely followed the statute in that respect, and must be affirmed.
Appellant argues that the remedy by attachment which appellant adopted and followed is not inconsistent with its mechanic’s lien, and that they are concurrent remedies. But that does not control decision here. We may assume that the remedy pursued by appellant is concurrent, and not inconsistent, with the mechanic’s lien. Appellant could at any time within the statutory 1-year period from the filing of its mechanic’s lien have proceeded to enforce it by foreclosure in chancery, even though it had also started an action at law in attachment. Netting Co. v. Touscany, 247 Mich 279. But the appellant is entitled to but one satisfaction. Morrison Co. v. Williams, 200 Mass 406 (86 NE 888). When it failed to enforce its mechanic’s lien, arid instead relied solely on the attachment proceedings and sheriff’s sale, it purchased at that sale only such right, title and interest in the property as defendant Miller had. Miller’s right, title and interest was then subject to plaintiff’s lien.
Decree affirmed, with costs to appellee.
Sharpe, C. J., and Bushnell, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred.
CL 1948, § 570.1 et seq. (Stat Ann and Stat Ann 1947 Cum Supp § 26.281 et seq.). | [
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Dethmers, J.
Plaintiff sold land to defendants on land contract containing a reservation to plaintiff of “a one-half undivided interest in and to all of the oil, gas and other minerals * * * for a period of 25 years” and an agreement to convey to defendants, upon performance of the contract, “a good and unincumbered title in fee simple.” After the contract had run for a while defendants paid the unpaid balance before it was due and told plaintiff’s cashier that they “wanted a good title to the place.” The cashier gave defendants a written receipt which acknowledged payment of the contract in full, made no mention of the reservation, and contained the following language:
“We hereby agree to deliver a good and sufficient deed and thereby convey to the said Hayden A. Durkee and Hazel L. Durkee and assign a good and unincumbered title in fee simple to the above described premises with their appurtenances as soon as it is possible to obtain our president’s signature.”
Thereafter plaintiff mailed defendants a deed which contained no reservation of oil, gas or mineral rights, but which did contain the following language, “Given pursuant to the terms of a certain land contract.”
Plaintiff’s bill prays that the deed be reformed to include the oil, gas and mineral reservation, alleging that it was omitted through mistake and as an oversight on plaintiff’s part. From decree for defendants, plaintiff appeals.
Defendants’ statement at the time they made final payment that they “wanted a good title to the place” and plaintiff’s agreement in the receipt to “assign a good and unincumbered title in fee simple” are not inconsistent with nor do they necessarily go beyond the agreement to convey “a good and unincumbered title in fee simple” contained in the very contract which expressly reserves oil, gas and mineral rights. There is no testimony that plaintiff at any time expressed an intention or agreed to relinquish any of its rights under the contract or that defendants ever requested it. It is not shown that defendants had any reason or right to think that plaintiff was. doing so aside from the bare fact that the reservation was not expressed in the receipt or deed and that the receipt provided for good and unincumbered title, the same as was agreed to be furnished in the contract. Testimony for plaintiff that the-omission of the reservation from the receipt and deed was a mistake on its part stands undisputed on the record. The trial court, in consequence; found that, “In the present case the instrument did not express the intent of .the plaintiff.”
Distinguishing this case from those in which reformation was granted, where the mistake was made-by a scrivener representing both parties, the trial court held that because here the mistake was made-by the plaintiff only and not by defendants the case-falls within the scope of cases holding that reformation will not be granted when the mistake is unilateral and not mutual. The latter type of cases involve situations in which the instruments sought to-be reformed express the intention of one party, but,, through unilateral mistake, not that of the other. This is not such a case. Here both parties intended the reservation when the contract was entered into. No change in that respect was ever discussed by or between the parties. No meeting of the minds to the contrary was shown. Defendants admitted that they did not know why plaintiff would be giving them the reserved rights, that they noticed that the reservation was not expressed in the receipt or deed, but that they, nevertheless, said nothing about the omission to plaintiff. Under such circumstances the receipt and deed cannot be said to express completely the understanding or intent of either of the parties at the time those instruments were executed. The facts in this case are so similar to those in Retan v. Clark, 220 Mich 493, that decision there must be held controlling. In that case we said:
“The consideration named in the contract was $8,000. The consideration actually agreed upon by the parties and which should have been stated in the contract, as claimed by plaintiffs, was. $8,000 and ‘the unpaid instalments of paving taxes assessed .against the premises.’ * * *
“It is not clear that the scrivener made the mistake. Bather it appears that plaintiffs neglected or forgot to have the contract recite the agreement respecting the taxes. The mistake was on the part of plaintiffs. Defendants observed.during the preparation of and at the time of signing the contract that the provision relative to payment of the taxes had been left out. * * *
“Defendants were silent as to such omission, but .after the contract was signed defendant Frank Clark sought counsel of his rights under such contract. * * #
“So it appears that defendants signed the contract knowing that it said nothing of such taxes and that plaintiffs signed it under mistake. It is a general rule that equity will not relieve by reformation unless the mistake is mutual. A. E. Wood & Co. v. Standard Drug Store, 192 Mich 453; Schlossman v. Rouse, 197 Mich 399; Standard Oil Co. v. Murray, 214 Mich 299; Gustin v. McKay, 196 Mich 131. But here there was mistake on the part of the plaintiffs and knowledge of the mistake and concealment thereof on the part of the defendants, both producing the inequitable result. Of a case of this class it is said in 23 BCL, p 331, citing cases:
“ ‘There is, however, still another class of cases: That where one party to an instrument has made a mistake and the other party knows it and conceals the truth from him. Such inequitable conduct accompanying a mistake is generally held to be sufficient ground for reformation of the instrument in question.’
“And see note 28 LBA NS 851.
“We think the trial court was right in reforming the contract.”
See, also, Davis v. Keys, 252 Mich 580; Holbeck v. Williamson, 255 Mich 430; Blake v. Fuller, 274 Mich 534.
Decree reversed. A decree may enter in this Court providing for reformation of the deed as prayed in plaintiff’s bill of complaint. Costs to plaintiff.
Sharpe, C. J., and Bushnell, Boyles, Beid, North, Btjtzel, and Carr, JJ., concurred. | [
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Bushnell, J.
Plaintiff Preston Allen, who was injured while a guest passenger in an automobile owned and operated by Dr. Earle W. Spohn, has appealed from a judgment of no cause of action entered on the verdict of the trial judge sitting without a jury.
On August 10, 1946, Allen and his wife were invited to be the guests of Dr. Spohn and his family at their cottage on the Canadian side of Lake Huron. Dr. Spohn came to Allen’s home northeast of Rochester, Michigan, about 8 o’clock in the evening, and they proceeded towards Port Huron. When they reached Richmond, Michigan, they inquired of a police officer regarding the shortest route, and they were advised to proceed directly ahead on Division, a black-top road, also known as 32-Mile road.
The Grand Trunk railroad tracks cross Division about one-half mile east of Richmond. According to one of plaintiff’s witnesses, a surveyor, the highway has a gradual rise of 3 feet 3 inches from a point 250 feet west of the tracks, to the highway crossing. However, another of plaintiff’s witnesses, also a surveyor, testified from an examination of certain photographs introduced in evidence, that the road was approximately level at the tracks. There were no crossing gates or automatic flashers, the crossing being-marked by a warning sign and the usual railroad-crossing sign. Neither the doctor nor Allen was familiar with the road, and neither was aware of the location of the tracks. The bright headlights of the automobile were on and there were no other lights of any kind in the vicinity or on the eastern horizon.
About 4 minutes before the accident a locomotive with its bell ringing and headlights on had crossed the road, drawing an 85-car freight train. When the train was about halfway over the crossing, it stopped to take on water. The conductor, who was riding in the caboose, testified that he alighted when the train stopped and then saw an automobile approaching from the west at what he claimed was an excessive rate of speed.
Plaintiff testified that Dr. Spohn was driving at about 30 to 35 miles per hour, and that he did not hear any sounds indicating the presence of a train, arid saw no lights. Allen insists that the gondola car into which they crashed was not observable within the beam of the automobile headlights, because of the elevation of the tracks; that he shouted a warning to Dr. Spohn, who was unable to stop before the collision.
The conductor testified that after the automobile struck the train he lighted a fusee and ran 45-car lengths to the intersection. He then broke the air hose to prevent movement of the train, and stopped an automobile approaching from the east, and told the occupants to get an ambulance and a doctor.
The hood of Dr. Spohn’s automobile was jammed under the body of the gondola. Allen sustained a fracture of the right hip and the neck of the femur, and received severe lacerations about the face resulting in permanent scars. At the time of trial his injured leg was a quarter of an inch shorter than the other, and further surgery was indicated.
The trial judge sitting without a jury concluded that plaintiff had failed to show any negligence on the part of defendant. Allen argues on appeal that it is negligence to permit an unlighted freight train to obstruct a heavily-traveled highway without giving motorists any warning of its presence; that defendant’s operating crew was negligent in failing to use the lanterns, flares, and other signal devices with which the train was equipped.
The cases hold that the presence of a railroad train on a crossing is notice and warning to those using the highway, and that railroads will only be chargeable with negligence if there are unusual conditions which require additional warnings. McParlan v. Grand Trunk Western R. Co., 273 Mich 527, 533; and Esterline v. Kennicott, 277 Mich 130, 133. See, also, Simpson v. Pere Marquette Railway Co., 276 Mich 653, and authorities annotated in 15 ALR 901, 56 ALR 1114, 99 ALR 1454.
Plaintiff relies on the fact that the night was dark, the horizon black, as was the surface of the road and the gondola car blocking the crossing. This combination of circumstances is not unusual. He also claims that fog or mist at an elevated crossing on a heavily-traveled highway added to the risk. However, there is conflicting testimony as to these facts.
The trial judge relied on the Simpson Case, supra. In that case the driver of the automobile, after observing a crossing sign 500 feet from the track, had slowed down to 10 miles an hour, and was on the alert for the train. Notwithstanding this exercise of caution, recovery was denied. The trial judge here concluded that, unless he imposed a continuous and permanent duty greater than that required by statute or decision, he was unable to find proof of defendant’s negligence. His conclusion was that no condition existed at the time of the collision that would require the imposition of additional duties upon defendant railroad company other than those required under ordinary conditions.
In cases tried by the court without a jury, we do not reverse unless the evidence clearly preponderates in the opposite direction. Benjamin v. Bondy, 322 Mich 35, 40, and Davis v. Randall, 322 Mich 195, 198.
The judgment is affirmed, with costs to appellee.
North, C. J., and Déthmers, Butzel, Carr, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Bushnell, J.
On July 9,1947, plaintiff 0. C. Bueg, of Erie, Pennsylvania, severed his connections as a member of defendant Aero Pattern & Engineering Company, Ltd., a limited partnership association. The parties hereto, who were then in litigation, settled their differences by Bueg assigning his 1,407 shares of stock to the partnership for the sum of $9,-750, payable as follows: A transfer to Bueg by a bill of sale of the machinery, materials and supplies in and comprising the company’s shop at Erie at a value of $6,000, three machines located in the Detroit shop of the company, valued at $350, and the balance of an account receivable of Plumbing Drainage Systems, Inc., valued at $2,432.25. The company assumed and agreed to pay the pay roll which had accumulated to and including July 9,1947, and make an additional cash payment to Bueg of $126.75.
It is the claim of Bueg that subsequent to this settlement and prior to his taking over the “Erie shop,” various items of tools and equipment were removed therefrom by defendant. It is also asserted that, although Bueg has collected the account receivable to the extent of $1,400, the debtor has refused to pay the balance of $1,032.25 because of claimed defective workmanship on the part of defendant. Plaintiff sought a judgment against defendant in the sum of $1,415.35.
Suit was begun in the common pleas court, where Bueg had a judgment in an unsatisfactory amount, and from which he took an appeal. The case was again tried in the circuit court, where a jury was waived and, after the taking of testimony, a judgment was entered in favor of Bueg in the sum of $950, from which both parties have appealed. At the close of the proofs, Bueg was permitted to amend his pleadings to include a charge of fraud.
One of the questions raised here on appeal has to do with the trial court’s limitation upon defendant’s cross-examination of plaintiff with respect to claimed criminal convictions. This matter first arose on the direct examination of Bueg and was stricken from the record on defendant’s motion as being irrelevant. When the defendant sought to’ cross-examine- plaintiff on the same subject, and he denied that he had ever been convicted of fraudulent conversion in the county of Erie, the court sustained an objection to the following question:
“Were you ever convicted of a crime in the county of Erie, Pennsylvania? ”
While it is generally true that a witness cannot be cross-examined on matters which have been stricken, there may be testimony, not properly admissible on direct because it was then irrelevant, but which may nevertheless be proper on cross-examination for the purpose of testing the credibility of a witness. See CL 1948, § 617.63 (Stat Ann § 27.-912). Thus, whilé it may be that defendant, by objection to an improper question on direct examination, did not waive his right to cross-examine on the same subject, in the absence of offer of proof by defendant of a criminal conviction, and under the circumstances here indicated, the court’s ruling in the instant trial without a jury did not constitute reversible error.
The question is also raised whether the sale of goods by an itemized inventory, “plus any other goods or merchandise belonging to Aero Pattern & Engineering Co., Ltd., situate on the premises known as 2340 McKinley avenue, Erie, Pennsylvania,” includes goods on the premises at the date of the sale despite the fact that they were not itemized in the bill of sale. The court admitted evidence to show the missing items, and such ruling was not erroneous because such testimony was consistent with, and explanatory of, the quoted terms of the written instrument.
With respect to the assigned account receivable, Bueg does not claim that its payment was expressly guaranteed. It is unnecessary to decide whether an implied warranty existed at the time of the assignment, as claimed by Bueg, or whether suit by him against the debtor is a condition precedent to his claim as argued by defendant, for the reason that the parties in their agreement provided the method and manner of determining whether any additional work should be required on the materials involved in the account. Plaintiff, before asserting any liability on the part of defendant, would be required to conform to his agreement with respect thereto. The method prescribed in the assignment is as follows:
“Should any further work be necessary on the materials making up the aforementioned account receivable, and the necessity thereof determined by a majority of the following persons, namely: Russell Mink, O. C. Bueg and Al Wells, notice of the nature and extent of such further work shall be given the Aero Pattern & Engineering Company, Limited, at Detroit, who will, at their expense, have such necessary work performed.”
The record does not contain any testimony to show that any attempt was made to conform to this agreed procedure; nor do we find any testimony with respect to material representations by the defendant with regard to the account receivable. In the absence of such representations, recovery cannot be had upon a fraud theory.
The amount of the judgment is not supported by the record. An amount of $88.75 is admitted, and the missing items at the Erie shop total $294.35.
The judgment is vacated and the cause is remanded with direction to enter a judgment in favor of plaintiff in the sum of $383.10. Costs in the circuit court to plaintiff, and costs in this Court to defendant.
Sharpe, C. J., and Boyles, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Sharpe, J.
On April 9, 1946, petitioner, Michael M. Huher, was arraigned on 2 complaints and warrants, one charge being that of carrying a concealed weapon and the other in which he was joined with 2 other codefendants, charged with breaking and entering a dwelling in the nighttime with a second count of grand larceny. Petitioner waived examination on both complaints, and on April 24,1946, pleaded guilty to the charge of carrying concealed weapons and also to the charge of breaking and entering a dwelling in the nighttime.
On April 30,1946, petitioner was sentenced in the district court of the United States, eastern district of Michigan, southern division, on 3 separate indictments ; each sentence was for a term of 5 years, and were to run concurrently.
On May 7, 1946, petitioner was returned to the recorder’s court for the city of Detroit and was sentenced to a minimum term of 1 year and a maximum term of 5 years on the charge of carrying concealed weapons, and a minimum term of 5 years and a maximum term of 15 years on the charge of breaking and entering a dwelling in the nighttime.
The court ordered that the above State sentences were to run concurrently.
On December 27, 1949, petitioner was delivered into the custody of the warden of the State prison of southern Michigan, according to the certification of the sheriff of Wayne county, Michigan. On Oc tober 20, 1950, petitioner petitioned for a writ of habeas corpus in the recorder’s court for the city of Detroit, where he questioned the validity of his sentence in the recorder’s court because they were indefinite as to date of beginning. On December 1, 1950, the trial judge denied petitioner’s petition for a writ of habeas corpus, giving as his reason that the recorder’s court was without jurisdiction to determine such issue.
Subsequently petitioner filed a petition for leave to appeal from the order entered in the recorder’s court. We have considered the petition as an application for a writ of habeas corpus. In determining the issue involved in this cause we have in mind that the sentence of the trial judge did not provide that the sentence would begin at the expiration of petitioner’s confinement in a Federal prison.
The mittimus in part reads as follows:
“And upon said conviction, the said court, at a session thereof, held as aforesaid, did, on the 7th day of May, 1946, adjudge and determine that the saidTMichael Matthew Huber, who is now the age of 25 years, should be committed to the State prison of southern Michigan, in the county of Jackson, and therein safely kept and employed according to the laws thereof, for the period of not less than 5 years from and including this date to 15 years.”.
“This sentence to run concurrently with sentence imposed on A-43281.”
The mittimus on the other sentence also contained the above, except that it read from 1 to 5 years.
In a brief filed petitioner admits that the mittimus in each case makes no mention of his claim that the sentences were to begin at the expiration of his Federal sentence, but urges that the minutes of the trial court and the records of the State prison state that sentences are to begin on December 2,1949, the date of his release from Federal custody.
The office of the writ of habeas corpus is to inquire into the cause of the imprisonment or restraint of the petitioner — see CL 1948, § 637.7 (Stat Ann § 27.2250). There is nothing in the co'de of criminal procedure relative to the time when a sentence upon conviction for a crime is to begin, nor have we been able to find any adjudicated cases in Michigan determining this issue. In the case at bar the delay in beginning the State sentence was because petitioner was serving a Federal sentence.
In People, ex rel. Hesley, v. Ragan, 396 Ill 554 (72 NE2d 311), one Hesley was convicted of robbery in the Federal court and sentenced to a term of 25 years. After delivery of the prisoner to the penitentiary he was indicted in Illinois for murder. He was returned for trial in Illinois and convicted of' the crime of murder. He was sentenced to a term of 25 years by the State court of Illinois.
Upon serving his sentence as a Federal prisoner he was returned to Illinois to begin serving his State sentence. Under habeas corpus proceedings petitioner sought release from his State sentence and urged that his Federal sentence and State sentence ran concurrently.
The court held that petitioner was not entitled to credit on the State sentence for time served-in prison on his Federal conviction. In an opinion the court said:
“We also held in People v. Kennay, 391 Ill 572 (63 NE2d 733), that sentences of imprisonment to different places of confinement do not run concurrently. This rule of law that State and Federal sentences do not run concurrently would appear to be definitely settled by many adjudicated cases. Vanover v. Cox (CCA), 136 F2d 442; Ex parte Campbell, 36 Cal App2d 221 (97 P2d 482); Ex parte Sichofsky, 201 Cal 360 (257 P 439, 53 ALE 615) ”
For effect of delay iii taking defendant into custody after conviction and sentence, see 72 ALR 1271-1279.
In our opinion the essential part of a sentence of imprisonment is not the time when it begins to run, but the serving of the sentence as required by law. Delay in taking petitioner into custody after conviction and sentence does not release him from serving the full term of his sentence. Petitioner is' not entitled to be discharged and the relief prayed for is denied and the writ dismissed.
North, C. J., and Dethmers, Butzel, Carr, Bushnell, Boyles, and Reid, JJ., concurred. | [
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Reid, J.
The bill of complaint was filed in this case to obtain a construction of the will of deceased, a declaration and determination that the trust set up in the will of the deceased is void as contravening the statute prohibiting the suspension of the absolute power of alienation of land (CL 1948, §§ 554.14, 554.15 [Stat Ann §§ 26.14, 26.15]), and in violation of the rule against perpetuities, and a determination that plaintiffs Josephine A. Bishop and Earl Johnson by right of representation are entitled to an interest in the estate, and for an accounting.
On motions, the trial court dismissed the bill of complaint. Plaintiffs appeal.
The daughter of deceased and the grandson of deceased, one of the legatees, filed one motion. The other motion was filed by the trustee under the will. The 2 motions were consolidated for the purposes of the argument in circuit court and are treated as consolidated on this appeal.
Plaintiffs request us to treat the motions as insufficient for want of supporting affidavits under Court Rule No 18 (1945), and for that reason to reverse the decree of the trial court. In each motion there is an express statement to the effect that the bill of complaint on its face is insufficient and does not state a cause for equitable relief, which would indicate that the motions are proper to be considered under Court Rule No 17, § 7 (1945), which does not require supporting affidavits. No testimony was offered in the trial court. The defendants in their separate briefs argue only from facts stated in the bill, with its attached exhibits and documents incorporated therein by reference. Defendants so submitted their case in the lower court. The facts set forth in each motion are facts appearing in the bill, its exhibits and documents incorporated therein by reference.
We find the motions to be proper in form to be the basis of the decree appealed from.
For the purpose of determining this appeal, all well-pleaded matters in the bill of complaint and amended bill are to be taken as true.
Decedent Byron V. Woodward, a resident of Pontiac, Michigan, died testate on September 28, 1928. His will, dated July 23, 1928, was admitted to probate on October 29,1928. At the time of the death of decedent, his sole heirs-at-law were his widow, Josephine C. Woodward, and his daughter, Nellie M. Lemon. •
The pertinent portions of the will of decedent Byron V. Woodward are as follows:
“Fourteenth. I give, bequeath and devise to my wife, Josephine C. Woodward, the use during her natural life of the home I now occupy on- Auburn avenue in the city of Pontiac, Michigan, being more particularly described as the north 100 feet of lot 57 of the eastern addition to the city of Pontiac, Michigan, and I further will and direct that my executor and trustee hereinafter named shall keep said premises in good order and repair, and shall pay the taxes assessed thereon, together with the insurance premiums, out of the income and proceeds from my estate, the same as an expense of the estate, I also give and bequeath to said Josephine C. Woodward the sum of $250 per month for and during the term of her natural life to be paid from the income and proceeds of my estate by my executor and trustee, hereinafter named. I also give and bequeath to said Josephine C. Woodward the use, possession and control of my household goods and furniture, so long as she lives, and I also give to her my Packard automobile, and after the death of Josephine C. Woodward all my household furniture and household effects remaining I give and bequeath to Mrs. Pearl Johnson, I further will and direct that in case the said Josephine C. Woodward so desires, I authorize and empower my said executor and trustee, hereinafter named, to sell the premises, hereinabove mentioned, as my present home, and purchase for her a new home out of the proceeds thereof for her to have the life use thereof, and in case of such sale the difference between the net sale price of my present home and the cost of a new home, if any, shall be equally divided between Pearl Johnson, Josephine A. David, Carrie Lawson, Nellie Lemon and Fred G-. King, and I further will and direct that at the death of said Josephine C. Woodward the proceeds of the net sale of my present home, or in the event of a sale thereof and the purchase of a new home, then the new home to be sold at the death of Josephine C. Woodward and the proceeds of the sale thereof, or of either of the said properties, as above set forth, shall at the death of Josephine C. Woodward be equally divided between the said Pearl Johnson, Josephine A. David, Carrie Lawson, Nellie Lemon and Fred Gh King.
“Fifteenth. . After all the above and foregoing provisions of my will are carried out or provision made therefor, then all the rest, residue and remainder of my estate, both real and personal, I give, bequeath and devise to Pontiac Trust Company of Pontiac, Michigan, in trust, however, to hold, manage, invest and reinvest for and during a period of 20 years from and after my death for the following purposes:
“(a) To pay taxes on my real estate and to make necessary and proper repairs, and to keep my rental property in good order and condition.
“(b) To pay from the income and proceeds of my said estate to Nellie M. Lemon, my daughter, the sum of $250 per month, so long as she lives or until the termination of the trust, excepting, however, that if in the judgment of my said trustee the circumstances or situation of the said Nellie M. Lemon requires more than the said $250 per month, then and in that event I authorize said executor and trustee to pay to my said daughter the sum of not to exceed $400 per month, if in its judgment said additional sum is prop errand necessary and required for her suitable maintainance and support.
“(c) To pay from the income and proceeds of my estate the provisions, hereinabove made, for my wife, Josephine C. Woodward.
“(d) To pay to Pearl Johnson, wife of Newton Johnson, the sum of $25 per month, so long as she lives, or until the termination of the trust herein-above created.
“(e) To pay to Prank Lemon, husband of my daughter, Nellie M. Lemon the sum of $50 per month during his natural life, or if he is living until the termination of the trust, hereinabove created.
“(f) In case of the death of my daughter, Nellie-M. Lemon, before the expiration of the trust, hereinabove created, then I will and direct that the sum of $250 per month from and after her death to be-paid to my grandson, Visco Prank Lemon, and in case of his death, disability or unforeseen circumstances, which in the judgment of the trustee would reasonably require an additional sum, then in that event said monthly allowance may in the discretion of my said trustee be increased to not to exceed $400 per month.
“(g) At the termination of said trust to deliver and convey the residue remaining of my said estate to my daughter, Nellie M. Lemon, and my grandson, Visco Prank Lemon, in equal shares or to the survivor of them, in case of the death of one, and in case of the death of the survivor before the expiration of said trust leaving issue, such issue to take its parent’s share, but if the survivor leaves no issue, then and in that event to pay over and deliver the residue of my said estate to my lawful heirs to be ascertained and determined by the proper court.
“Sixteenth. I further request and direct that the other real estate, I now own, be held, managed and leased during the period of the trust, except that lot 9 of the eastern addition to the city of Pontiac, Michigan, also the west half of lot 50 and the west 30 feet of the north 45 feet of lot 51 of the original plat of the city of Pontiac, Michigan may be sold by my executor and trustee, provided the approval of the sale is obtained from my daughter, Nellie M. Lemon, and my grandson, Visco Prank Lemon, but the remainder of my real estate I request shall be held as an investment, unless unforeseen circumstances arise by which it will be for the best interest of my estate that the same or some part thereof be sold.”
The Pontiac Trust Company was appointed executor; the estate was administered; the legacies of specific sums provided in portions of the will, not herein quoted, were all paid by the executor; the final account of the executor was allowed and residue of the estate was assigned on May 26, 1930, in trust to the Pontiac Trust Company as trustee named in the will of deceased. At the inception of the trust, the assets amounted to $344,158.08.
The widow, Josephine C. Woodward, was married to Earl Johnson in May, 1943, and Mr. and Mrs. Johnson lived and cohabited together as husband and wife from that date to the death of Josephine C. Woodward Johnson intestate on February 27, 1948.
The trustee' and its successor administered the trust, and filed accounts as trustee in the probate court, which accounts were duly allowed.
The daughter, Nellie M. Lemon, during the period of approximately 17i years ensuing after the beginning of the administration of the trust, received $44,204 in monthly payments under the will and the widow, Josephine C. Woodward Johnson, received at the hands of the trustee approximately $42,182 from the income of the trust.
The widow, Josephine C. Woodward Johnson, did not file any election not to take under the will, although the statute in force at the time of the progress of the probating of the estate required the widow within a year to make her election not to take under the will, without any. provision for notice to her to make her election. The right was personal with her and ceased at her death. Vanderlinde v. Bankers Trust Co., 270 Mich 599, 605.
At the time of the death of Josephine C. Woodward Johnson, her sole heirs were her husband, plaintiff Earl Johnson, and her granddaughter, plaintiff Josephine A. Bishop. While Josephine C. Woodward Johnson left a purported last will and testament, the same was disallowed, not having been duly executed.
Josephine C. Woodward Johnson not only received the $42,182 paid her in monthly payments by the trustee but she seems to have had the use, possession and control of the household goods and furniture and of the residence on Auburn avenue in Pontiac, and the trustee seems to have paid the taxes and insurance premiums out of the estate. We are to infer that the trust set out in the will was fully executed so far as Josephine C. Woodward Johnson was concerned, completely and entirely, during her lifetime.
Plaintiffs object to the trial court having recourse to the probate files in the estate of Byron Y. Woodward, deceased, in making his decision granting the motions to dismiss. However, after detailed recitals as to what had occurred concerning the matter of the estate of Byron Y. Woodward, deceased, the bill recites:
“All of which more particularly appears from the files and records of said probate court in said estate, reference to which is hereby prayed.”
We conclude that under Court Rule No 17, § 5 (1945), of our court rules, the probate files and records being public records, were, in practical effect, a part of the pleading.
Plaintiffs claim that the trust in question contravenes the provision of the statute prohibiting the suspension of the absolute power of alienation of land beyond two lives in being at the creation of the estate and violates the rule against perpetuities.
. Defendants do not deny that the trust provisions of the will do violate the statute prohibiting suspension of the absolute power of alienation of land and the rule against perpetuities. Defendants by their motions claim the benefit of the statute of limitations, and further claim that the plaintiffs are bound by the laches of their privy, and are estopped.
Plaintiffs have no right or standing in respect to the matters of the estate of Byron V. Woodward, deceased, excepting through the deceased widow, Josephine C. Woodward Johnson. As we have heretofore said, Josephine C. Woodward Johnson did not elect to take under the statute and chose to take under the will. She accepted the provisions of the will and the same were fully performed as to her by the trustee during her lifetime. Therefore she must be treated as having fully accepted the provisions of the will and estopped herself to deny the validity of the trust or to question the provisions of the will in any manner. The plaintiffs claim only through her and her estoppel operates to estop the plaintiffs as fully as though they themselves had participated therein.
Plaintiffs allege in their amended bill that their privy, Josephine C. Woodward Johnson, relied on the advice of Pontiac Trust Company, the executor and trustee under the will, and that the executor and trustee advised her that she was only entitled to a widow’s allowance and the provisions for her under the will. Plaintiffs do not allege when the advice was given her, whether before the probation of the estate was ended and residue assigned, or later, or whether before or after her right to elect not to take under the will had expired. Plaintiffs do not allege what officer of the trust company gave such advice. Plaintiffs, however, do allege that Josephine C. Woodward Johnson refrained from opposing the will of her husband, decedent Woodward, out of regard for the feelings of Nellie M. Lemon and in order not to cause family discord. Apparently, therefore, she knew, regardless of the advice of the trust company, that she could oppose the will if she saw fit. Plaintiffs do not allege that she refrained from opposing the will because of the advice of the trustee.
Plaintiffs in their statement of questions involved do not include fraud by reason of the advice of the trust company as being involved in this appeal, nor specifically allege in their statement of reasons and grounds of appeal that the trial court failed to find such fraud. Under all the circumstances, we conclude to give plaintiffs no relief on account of the-claimed incorrect or fraudulent advice of the trust company.
Plaintiffs claim that because a misstatement occurred in the testimony at the hearing on the final account of the executor concerning the nature of the trust, that the court was acting upon false testimony and that the consequent order assigning the residue to the trustee is to be treated as void because founded upon false testimony. This objection refers to the following question and answer:
“Q. The will provides that the residue be left in trust with the Pontiac Trust Company during the lives of certain persons ?
“A. Yes.”
It will be seen that this question and the answer thereto, together do not properly indicate the nature of the trust. However, we cannot on that account at this late day set aside the order of the probate court, dated May 26, 1930. We cannot assume that the probate judge did not read the will before he signed the order turning the residue of the estate over to the trustee under the will nor that he did not have a just comprehension of the terms and meaning of the will. See Heap v. Heap, 258 Mich 250, 259.
The order of the probate court made on May 26, 1930, assigned the residue of the estate, “to Pontiac Trust Company as trustee, in trust, in accordance with the terms of the will of said deceased.”
In Glover v. Reid, 80 Mich 228, we say at page 232:
“We think the probate court had jurisdiction to construe the will. Such power is necessarily involved in the power to assign the estate of a testator on the settlement of an executor’s account.”
In Dudley v. Gates, 124 Mich 440, we say at pages 441, 442:
“After the estate is settled and is before the probate court for distribution, it must be distributed .according to the terms of the will, which is the sole guide for the court in its order of distribution. The probate court then has jurisdiction to interpret the various provisions of the will, but not otherwise.”
In MacKenzie v. Union Guardian Trust Co., 262 Mich 563, we say at page 580:
“The allowance of a final account of an executor may be conclusive as to receipts and disbursements, but even the allowance of a final account may not amount to a construction of the will.
“If, however, upon the conclusion of the probate of the estate of a testator, upon the allowance of the administrator’s final account, the assignment of the residue of the properly of the estate is made in accordance with the construction of the will of the deceased by the probate court, then, under such circumstances, the court having to construe the will in •order to make a proper order of distribution, such order of distribution properly entered is valid and binding as a construction of the will, if not appealed from,” (Italics supplied.)
Under the authority of Chapin v. Chapin, 229 Mich 515, the order of the probate court in the case at bar assigning the residue to the trustee under the will was res judicata.
Plaintiffs are estopped by the order of the probate court and by the actions of their privy, Josephine C. Woodward Johnson, whose actions amounted to a recognition of the trust as though valid, and who received at the hands of the trustee in her lifetime, all that the Will gave her. Plaintiffs have no greater interest than Josephine C. Woodward Johnson had at her death.
The order dismissing the bill of complaint is affirmed. Costs to defendants.
Sharpe, C. J., and Bushnell, Boyles, North, Dethmers, Butzel, and Carr, JJ., concurred.
See CL 1929, §§ 13084-13086 (Stat Ann. §§ 26.233-26.235).— Reporter. | [
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Dethmers, J;
On December 22, 1951, defendant was arrested on a drunk driving charge. . Upon arraignment in the recorder’s court of' the city of Detroit on December 24th, trial was set for January 2, 1952. On Friday, December 28th,’ the. president of défendant’s employer, Overhead Conveyor Company, located in Detroit, wrote a 'letter to defendant’s attorney, received during the middle of the afternoon on Monday, December-31st, stating that defendant was one of its valued engineers and that it would be necessary for him to be in-Gary, Indiana, on January 2d in connection with the instah lation, inspection and- completion of an overhead conveyor system in a defense plant, and *that such installation was essential to national defense rei quirements. Defendant’s attorney ' immediately called the judge’s office to request an adjournment. Neither the judge nor the' assistant prosecutor involved was available, whereupon the attorney called the police officer, in charge of the case and understood from him that a continuance would be arranged..
At opening of court on January 2d, defendant’s attorney appeared, presented the employer’s letter, and asked for an adjournment. The judge read the letter,. asked whether that was the only excuse for defendant’s not being in court and, upon the .attor ney’s affirmative reply, forthwith denied the motion for continuance and ordered forfeiture of bond and issuance of a capias. Defendant’s attorney’s motion for approval of a bond on appeal and stay of proceedings was denied. Thereafter this Court granted leave to appeal and stayed proceedings upon filing of approved bond.
Defendant claims abuse of discretion in the refusal of a continuance. Cases cited in support of defendant’s claim involve situations in which denial of continuance worked to the prejudice of a defendant’s right to a fair trial. Such is not the present situation. While we find nothing in the trial court’s actions or demeanor to commend, we cannot hold it to have been an abuse of discretion to deny a continuance on the, mere unsworn statement of defendant’s employer that, on the basis of its own determination and conclusions, it would be necessary for him to be elsewhere on the date set for trial. The validity of the claim on defendant’s presence elsewhere was a matter for determination by the court rather than by his employer. The motion was unsupported by affidavit or any other showing from which it might be determined when the alleged need for defendant’s presence in Cary first became known to him or that defendant could not, in the exercise of due diligence, have arranged to be present for trial or have moved for a continuance seasonably before the prosecution, with 6 witnesses, was present in court and ready for trial. In People v. Mason, 63 Mich 510, this Court said:
“A mere statement of counsel that the respondent is hot prepared for trial is not sufficient basis for a continuance of the cause. The practice and rules of court require such applications to be supported by affidavit showing the necessity for delay, and, in the absence of such showing, it was not error to overrule the motion.”
Under the circumstances, forfeiture of bond and issuance of capias were proper. People v. Ulberg, 313 Mich 204.
Affirmed, with costs to plaintiff.
North, C. J., and Btttzel, Carr, Bttshnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Dethmers, J.
Plaintiff entered into a written agreement wlierennder lie was appointed agent of the defendant corporation to sell books on a commission basis. The contract contained the following provision:
“This contract shall not be modified or changed by any verbal promise or statement by whomsoever made and no such promise or statement shall be binding upon the company until the same shall have been approved in writing by the company.”
Plaintiff says that thereafter defendant Guido, as division sales manager of the corporation, made an oral agreement with him on behalf of the corporation whereby the latter undertook to do certain things, not mentioned in the written contract, to aid plaintiff in the sale of books, but that the corporation failed to perform accordingly.
Plaintiff did not show that Guido had actual authority from the corporation to make the oral agreement and defendants deny it. Plaintiff, however, relies upon language quoted with approval in Grinnell v. Carbide & Carbon Chemicals Corp., 282 Mich 509, 525, as follows:
“It is elementary that persons dealing with an agent may rely on his apparent authority (Marx v. King, 162 Mich 258), and that such authority is to be gathered from all of the facts and circumstances properly admitted in evidence.”
Aside from the fact that Guido was one of defendant corporation’s division sales managers there is no evidence in the record to support a finding of apparent authority on his part to so bind the cor poration. The quoted provision of the contract constitutes a fact or circumstance negativing any idea of such apparent authority.
“ ‘If there is anything likely to put a reasonable business man upon his guard as to the authority of the agent, it is the duty of the third party to inquire how far the agent’s acts are in pursuance of the principal’s limitation.’ ” Humphrey v. Onaway-Alpena Telephone Co., 204 Mich 97, 109.
Plaintiff made no such inquiry. There is no evidence that the corporation, prior to the termination of plaintiff’s employment with it, accepted any benefits under the alleged oral agreement or in any other way ratified it.
Plaintiff’s declaration does not allege nor did he show that Guido was personally bound to do anything under the alleged oral agreement.
“Where the principal is disclosed, and the agent is known to be acting as such, the latter cannot be made personally liable unless he agreed to be so.” Whitney v. Wyman, 101 US 392 (25 L ed 1050).
Plaintiff had neither an established business or market for the sale of defendants’ books, nor a demonstrated record of previous sales from which a determination of possible future sales might have been made with reasonable certainty. The court properly having rejected offers of proofs of plaintiff’s merely speculative estimates as to what commissions he might have earned had he received the aid from the corporation to which he claims he was entitled (Isbell v. Anderson Carriage Co., 170 Mich 304), and of what he later earned as salesman for another book selling concern (Dowagiac Manufacturing Co. v. Corbit, 127 Mich 473), as well as of shock and anguish suffered by him as a result of the corporation’s failure to perform (15 Am Jur, Dam ages, § 182), plaintiff was left with no proof of any damages whatsoever.
The directed verdict for defendants of no cause for action is affirmed, with costs to defendants.
Sharpe, C. J., and Bushnell, Boyles, Betti, North, Butzel, and Carr, JJ., concurred. | [
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Bushnell, J.
This is an appeal by defendant C. G. Goff, individually and as trustee, and his wife, from an order denying their motion to vacate a decree under which Goff was required to pay certain moneys into court.
Goff, the owner of an oil and gas lease in Bloomingdale township, Van Burén county, entered into trust agreements with plaintiff Daniel G. Singer and others. Singer’s agreement, dated March 3, 1942, provides in part as follows:
“It is agreed by the first party [Goff] that he will drill a well for oil or gas on the above described lands to the traverse limestone or to the approximate depth of 1,300 feet and furnish all necessary drive pipe, casing necessary to drill said well.
“The second party [Singer] hereby agrees to pay the sum of $58 for the 1/48 of the 7/8 working interest in said lease and well.
“It is agreed by the first party as Trustee that after the cost of labor, casing, drive pipe, tubing, rods, tanks and other necessary equipment has been fully paid for out of any proceeds derived from the sale of oil or gas by said Trustee, that he will turn over to the second party 1/48 of the 7/8 of all remaining revenues received by him. * * *
“It is agreed by C. C. Goff that he will retain for himself at least 3/8 of the 7/8 working interest.
“It is understood that the above moneys paid are in full for the drilling of well No 1 and in case of commercial production the costs of casing, tubing, rods, pumps, tanks, and all other necessary equipment are to be paid for by the trustee out of the funds derived from the sale of oil; and after discontinuing operations the proceeds derived from the sale of equipment shall be paid to the different parties of this agreement as their interest appear.”
On September 16, 1943, plaintiffs filed a bill of complaint in which they stated that Goff had drilled a producing well but had failed to account for the proceeds of the sale of oil-therefrom. They sought an accounting, the appointment of a receiver, and an injunction restraining defendants from .unlawfully using or disposing of funds or property.
On March 3, 1944,- Singer was appointed receiver with “power to act in all things relating to such receiver (ship) not exceeding 1 year.” Singer later filed a bill of particulars in which he stated that Goff, contrary to the “trust articles,” had wrongfully charged plaintiffs $1,296.63 for his cost of drilling the well, and that he also had on hand $929.23, for which he had not accounted.
The sale of the leasehold interest and personal property by Singer for $2,375 was confirmed and the residue ordered distributed. Singer later filed a petition asking for a money decree against Goff, and on November 4, 1949, Goff was ordered to pay into court the $1,296.63 and $929.23 items, totaling $2,225.86.
On appeal, Goff argues that the court was without jurisdiction to require him to pay funds over to the county clerk in the absence of a hearing on the merits, and he denies that Singer proved the claimed indebtedness.
Ordinarily a receiver may not in a summary manner take property from the possession of strangers to the record who claim adverse rights therein. Reed v. Baker, 42 Mich 272, 40 ALR 903, 43 ALR 1340. Goff, however, is not a stranger to the receivership proceedings. He is named therein as a defendant both as trustee and individually. The fact that he came into possession of the money and personal property prior to the appointment of Singer is immaterial. Fidelity Trust Co. v. Saginaw Hotels Co., 259 Mich 254.
Singer’s appointment, limited by the terms of the order to 1 year from March 3, 1944, was never extended. Goff, therefore, claims that Singer lacked authority to file the 1949 petition. Equity courts have inherent power to appoint a receiver, Michigan Minerals, Inc., v. Williams, 306 Mich 515, 525, and it is a matter of discretion whether a receivership shall be continued or discontinued. First National Bank of Detroit v. E. T. Barnum Wire & Iron Works, 60 Mich 487, 499. The record in the instant case shows that, after the expiration of the 1-year period, the court issued various orders which necessarily imply a continuance of the Singer receivership.
The principal question concerns the item of $1,-296.63, which Goff deducted from the proceeds of the sale of oil and used to reimburse himself for expenses incurred in bringing in a producing well. Plaintiffs argue that the moneys paid by them were to cover the entire cost of development.
Under the trust agreement, Goff was required to drill a well and furnish all necessary drivepipe, casing, et cetera. He agreed to retain for himself at least a 3/8 of the 7/8 working interest in the lease. Moneys paid him by others were to be in full payment for their share of the cost of drilling. Net proceeds from the sale of oil were to be distributed. Necessary equipment was to be paid for by Goff out of funds derived from the sale of oil; and after the discontinuance of the operation the proceeds result ing from the sale of equipment were to he paid proportionately to the interested parties.
Plaintiffs’ construction of the agreement is in conflict with the cardinal principle which requires us to construe this contract as a whole and give harmonious effect, if possible, to each word and phrase. Duval v. Actna Casualty & Surety Co., 304 Mich 397, 401. The trust agreement clearly provides that the expenses as listed therein, which would be incurred primarily in the drilling of the well, were to be deducted from the proceeds of the sale of oil. The agreement, fairly construed, can have but one meaning, namely, that if the well proved to be a dry hole, others holding interests in the leasehold would not be obliged to pay more than they originally contributed, and that Goff would be responsible for any additional expenses. Other methods of apportioning costs and distributing proceeds were provided in the event the well proved to be commercially successful. We do not agree with plaintiffs or with the trial court that Goff should be required to pay $1,-296.63 into court for distribution to the interested parties.
Goff, however, admitted that he had on hand undistributed funds amounting to $929.23; The trial judge correctly determined that this amount should be paid into court. Goff argues that if any money is due, it should be paid to the owners of the respective interests rather than to the receiver. He insists that there are several interested holders who are not parties to the receivership action. Singer, as receiver, however, represents all interested parties who have already or may establish any rights in the matter, and, therefore, he stands in the position formerly occupied by Goff. First National Bank of Detroit v. E. T. Barnum Wire & Iron Works, supra, 499, and Klingensmith v. James B. Clow & Sons, 270 Mich 460.
The decree of the trial court is vacated as to the $1,296.63 item, and affirmed as to the $929..23 item. A modified decree may be entered here. Neither party having prevailed in full, no costs will be allowed.
Dethmers, Butzel, Carr, Sharpeí Boyles, and Reid, JJ., concurred.
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Boyles, J.
Plaintiff brought suit, in the circuit court for Lenawee county to recover $1,160.49 for labor and material expended in rewiring the báse ment of a building which was occupied, in part, by the defendant as a tenant. Upon trial by the court without a jury, plaintiff had judgment and the defendant appeals. The facts and circumstances are mostly undisputed.
The defendant Grinnell Brothers has main offices in Detroit and operates a retail store in Adrian, of which one Mr. Morris is the local manager. The building is owned by the Joslin family, Grinnell Brothers lease a part of it, and there are 2 other tenants, the Economy Shoe Store and the “KP Hall.” Defendant’s local manager, Mr. Morris, arranged with the plaintiff to remodel the ground floor for use by the defendant. The work involved, removal of a partition, installing soundproof booths, rewiring where the partition was taken down, moving and rewiring fixtures. Plaintiff’s first estimate of the expense was $1,500, including redecorating; Morris told plaintiff that he felt he should discuss it with the Detroit office. Grinnell Brothers objected that it was more money than they wanted to put in. At Mr. Morris’ request, plaintiff prepared a written estimate to be sent to the Detroit office for approval. The amount then set for the job was $750 and plaintiff’s estimate, among other things, provided for wiring as follows:
“Remove that portion of electrical wiring in the partitions that are to be removed and rewire with new material. New electrical wiring includes only the portion of the store that is to be remodeled.”
Defendant in Detroit approved the work, plaintiff proceeded to perform accordingly, submitted an invoice to the defendant for $638.71 and it was paid by check from Detroit. In the record, this job is called the “May” contract, and is not directly involved in the instant case.
After the “May” job was completed it was necessary that the wiring be approved by the city electrical inspector before it conld be put into use. The city electrical inspector came to check the wiring, approved the work that had been done, and during the course of his inspection went into the basement. He found the entire basement wiring was old and defective and insufficient to carry service of electrical energy for defendant’s added requirements with those of the other customers. Defendant’s local manager was informed that the new wiring could not be connected up until the basement wiring was replaced. Thereupon defendant’s local manager told plaintiff to go ahead with the basement job, and plaintiff did so. When it was completed, the cost of plaintiff’s labor and material amounted to $1,160.49, and at that point the present dispute came into being. Who was to pay plaintiff for the basement job? The plaintiff claims that defendant’s local manager had authority to bind the defendant to pay. The defendant-appellant claims that its agent Mr. Morris had neither actual nor apparent authority to bind it to pay for réwiring the basement. The testimony is quite conclusive that the defendant Grinnell Brothers did not expressly authorize or empower its local manager to have the basement rewired, or give Mr. Morris any express authority as its agent to bind the defendant to pay for the work. The essential question in the case is whether Mr. Morris had such apparent authority as to bind his principal.
When plaintiff started the basement job, the situation was as follows: The remodeling job had been completed and paid for; defendant could not make use of it without the basement being rewired; defendant’s local manager, when so informed, told the plaintiff to go ahead and do the work but did not obtain an estimate or take the matter up with his principal in Detroit. There are 2 versions as to what Mr. Morris told the plaintiff about payment. The plaintiff testified:
“A. He (Morris) said that Grinnell Brothers would authorize payment of doing the work. * * * At that time Mr. Morris authorized us to go ahead with the work, and he used this statement, ‘Grinnell Brothers will see that you receive your money.’ * * *
“Q. What inquiry did you make as to the extent of Mr. Morris’ authority?
“A. I made no inquiry, Mr. Barnett. I don’t think that it is justifiable for me to do business with a man and then to make inquiry as to whether he is or he isn’t manager of a store. * * * In other words, I had to rely on what Mr. Morris told me. I never received any instructions from any other officers of Grinnell’s regarding the work. In my conversations with Mr. Morris I relied on what he said as being the statement of Grinnell Brothers. I had no reason to doubt but what he had authority to make this sort of arrangement. * * * I never had any written authority from anyone in connection with Grinnell Brothers to do any work. The only transactions with Grinnell Brothers have been with Mr. Morris. They have all been oral. * * *
“Q. The net result of the conclusion you drew from your conversation with Mr. Morris was that he would guarantee payment?
“A. That’s right.”
Mr. Morris, as a witness for the defendant, testified:
“After the wiring had been completed on the first floor the city electrical inspector came in to cheek the work. During the course of his inspection he went into the basement and said that the entire basement wiring was defective and something had to be done. I talked to Mr. Cutler about it — -the amount of wiring that had to be done. I said I did not think that was our obligation to take care of that. I would have to call the owner of the building.”
The Joslin family were the owners of the building. About 2 days after the basement job was started the owners were called in by Mr. Morris; and two of the Joslin family, with the plaintiff, the wiring contractor and Mr. Morris, went into the basement. Mr. Morris testified that he told Joslins he didn’t think it was the obligation of the defendant to take care of it, and that—
“I talked to Theodore Joslin and he told me not to call the Detroit office. He said he didn’t see any point in worrying the home office about this. He said we will take care of it.
“Q. And that conversation is something that you then told Mr. Cutler?
“A. Yes.
“Q. "What did Mr. Cutler say after you told him that?
“A. Well, he just said OK. * * * Mr. Cutler, as I recall it was the next day, that asked me, told me, come upstairs, said, ‘I understand these Joslin boys aren’t such good pay. And will the Grinnell. Brothers back us up on it? ’ Or will you back me up on it, or Grinnell Brothers, which is the same thing. I said we would certainly help him try to collect his money.”
The record leaves no room for doubt but that the plaintiff did not at any time contact the defendant Grinnell Brothers about the basement job before it was completed. Plaintiff’s sole contact was with Mr. Morris. After the job was completed plaintiff billed the owners of the building for $1,160.49 for his labor and material. The owners refused to pay, whereupon plaintiff brought the instant suit against Grinnell Brothers, on the theory that defendant’s agent had bound the defendant to pay.
The record is clear that the defendant Grinnell Brothers did not know about the basement wiring-job until after that work was completed. It was entirely outside of the estimate submitted by plaintiff to the defendants; in fact, was contrary to the estimate in that the electrical wiring for the remodeling job was expressly limited to “the portion of the store that is to be remodeled.” The defendant can be held liable only on the basis that Morris, as agent for Grinnell Brothers, had the apparent authority to engage plaintiff to do the basement wiring job. The evidence clearly shows there was no such express authority from defendant to Mr. Morris. Unless there was apparent authority, plaintiff must fail. Such apparent authority cannot be established solely by the acts and conduct of the agent.
“When a principal cloaks his agent with apparent, authority to do an act not actually authorized, the-principal is bound thereby. * * *
“ ‘The apparent authority for which the principal may be liable must, however, be traceable to him and cannot be established by the acts and conduct of the-agent.’” Richards v. Lowrie & Webb Lumber Co., 317 Mich 42.
“A person who deals with an agent is bound to inquire into the extent of his authority, ignorance of' which is no excuse.” Hurley v. Watson (syllabus), 68 Mich 531.
“One dealing with an agent is bound to inquire-into the extent of his authority, not from the agent, in the absence of written evidence thereof, but from the principal, if accessible; and dealings or engagements of the agent beyond the scope of his authority do not bind the principal.” Delta Lumber Co. v. Williams (syllabus), 73 Mich 86.
To the same effect, see 1 Mechem on Agency (2d ed), § 743 et seq.
There is nothing in the record to indicate that plaintiff made any attempt to find out from the defendant whether the branch manager had authority to have the basement rewired. It was definitely outside of the job which the plaintiff had already been engaged to do, and which had been completed. The record indicates that plaintiff had already befen put on notice, by what had occurred in connection with the “May” contract, that as to construction work Mr. Morris had only limited authority, and that such a contract required the approval of the home office. During negotiations for the “May” contract plaintiff prepared an estimate (exhibit 1) at the request of Mr. Morris “so it could be submitted to Detroit for approval,” and during negotiations for the basement job plaintiff was advised by Mr. Morris that he had not called defendant’s home office for approval of the basement job because. Mr. Joslin (an owner) had told him not to call Detroit. A further indication that plaintiff had notice or knowledge of the local manager’s lack of authority to have the basement rewired is shown by the amount involved. Grinnell Brothers had demurred to the first estimate of $1,500 expense for the remodeling job. Plaintiff was aware of that fact when he submitted an estimate of $750, and actually charged $638.71. The additional basement expense, $1,160.49, would bring the total amount considerably above the original estimate which plaintiff knew Grinnell Brothers had rejected. Plaintiff also knew that Mr. Morris was not submitting the basement job to defendant for approval.
The trial court, in his opinion, stated:'
“It is undisputed that Mr. Morris was the manager of defendant’s Adrian store. To the average person, the manager means a person clothed with authority to act in all matters pertaining to the op eration of the particular establishment. When a person enters a mercantile place and wants to make special or particular inquiry, the usual and natural remark is, T want to see the manager.’ That common expression comes from the general understanding that» the manager is the one in authority.”
That is not sufficient. Obviously, a manager is in general charge of the store. He makes contracts for sale or purchase of merchandise, and the conduct of the local business, which are binding on his principal. They are within the ambit of apparent authority. But we decline to hold that the manager of a local store has apparent authority to contract for construction work of an extensive nature which, in this case, would benefit not only his principal, but also the owners of the building and other tenants of the premises. Such an act was not within the apparent authority of Mr- Morris, and the defendant is not bound thereby. The acts and conduct of the agent are not sufficient to prove his authority. The defendant is not bound by the act and conduct of Mr. Morris in employing plaintiff to rewire the basement.
In view of the above conclusion, it is not necessary to consider another question raised, i.e., whether the oral promise, if any, made by Mr. Morris to see that plaintiff was paid for the basement job, was a promise to pay the debt of another (the owners), hence void under the statute of frauds. Nor need we consider whether the owners, who are not parties herein, had incurred the indebtedness, or are bound to pay.
Reversed and remanded for éntry of judgment for the defendant, with costs to appellant.
Sharpe, C. J., and Bushnell, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred.
CL 1948, § 566.132 (Stat Ann 1947 Cum Supp § 26.922). | [
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Boyles, J.
In March, 1947, plaintiff obtained a judgment against Charles F. Budds for $15,200, with costs, which remains unsatisfied.
On July 15, 1947, plaintiff garnisheed the Hubbard State Bank to collect the judgment. The bank filed a disclosure denying liability to the principal defendant and representing that the moneys in the bank were the property of Ann M. Budds, his wife.
Ann M. Budds, by stipulation and court order, was permitted to intervene in the garnishment proceedings and filed a motion to dismiss the writ of garnishment on 2 grounds — (1) that the funds belonged to her; and (2) that plaintiff had failed to comply with the mandatory requirements of the statute providing for garnishment proceedings against a nonresident principal defendant.
At the hearing before the circuit judge, counsel for Ann M. Budds and for the plaintiff stipulated in open court that Ann M. Budds waived her objection to the claimed jurisdictional defect in the proceeding and plaintiff waived any right to appeal; and on that basis said parties submitted tbe matter to the court for final decision on tbe merits, without appeal.
Tbe circuit judge beld that tbe fund belonged to Ann M. Budds, entered judgment against tbe plaintiff, and no appeal was taken. Eleven days later plaintiff instituted a second garnishment against tbe same bank, on tbe same judgment, in which proceedings tbe garnishee defendant bank made tbe same disclosure as before. Ann M. Budds again intervened, again claimed tbe fund, and moved tbe court to dismiss tbe proceedings on tbe ground that the previous judgment was res judicata, and that tbe issuance of tbe second writ was a gross abuse of process.
Tbe trial court so beld, and from tbe order dismissing tbe writ of garnishment tbe plaintiff appeals. Her counsel claims — (1) that inasmuch as tbe first garnishment proceeding was void because of jurisdictional defects; and (2) because there is nothing to indicate that tbe fund garnisheed in the instant proceeding is tbe same as that claimed in tbe previous garnishment, tbe court erred in dismissing the writ.
We find no merit in either claim. Tbe question in tbe first casé as to tbe jurisdictional defect was waived and was not decided. Insofar as tbe present case is concerned, tbe former writ was not void. That case was submitted on its merits as to whether Ann M. Budds was tbe owner of tbe funds in tbe bank. On being served with tbe second writ 11 days later, tbe bank disclosed tbe same amount of money in its possession as before, and that it belonged to Ann M. Budds, as before disclosed. Nothing in this record tends to show tbe contrary. Plaintiff made no showing of any other funds or any change of condition in the interim between tbe issuance of tbe 2 writs, and tbe disclosure of tbe garnishee defendant was not controverted at the hearing on the motion. On this record, the court’s finding in the first case is res judicata of plaintiff’s rights against the bank, and the issuance of the instant writ was a gross abuse of process.
Appellant now makes a claim that she is not barred by the unappealed judgment in the previous garnishment, because of her stipulation not to appeal from that decision. There is no merit in the claim.
“Where an arbitration agreement provides that any controversy between the parties thereunder shall be submitted to the circuit court, and that its decision shall be final, such agreement is valid and binding on the parties, though it ousts the Supreme Court of jurisdiction of an appeal, and precludes a review of the decision of the circuit court.
“On grounds of public policy, litigants should be encouraged to accept as final the decisions of courts of original jurisdiction.” Hoste v. Dalton (syllabi), 137 Mich 522.
Affirmed, with costs to appellees.
Sharpe, C. J., and Bushnell, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred.
CL 1948, § 628.29 (Stat Ann § 27.1883). | [
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Sharpe, J.
This is an action for damages for the claimed unlawful sale of 300 shares of Atlantic Gulf & West Indies Steamship Lines. Plaintiffs, Charles C.-Levenburg and Annette J. Levenburg, in November, 1948, were the owners of 300 shares of the above stock. From 1944 to December, 1948, plaintiffs had about 50 transactions, with defendant company, which included the buying and selling of stock. The majority of these transactions were margin accounts, and the agent in charge for defendant company was Nathan Plotkin.
On or about November 15, 1948, Plotkin informed. Mrs. Levenburg that he could get 47i for her Atlantic Gulf & West Indies stock. On December 2, 1948,. she authorized defendant company to sell at that price. It appears that on November 20, 1948, the Manufacturers Trust Company offered to buy shares of common stock of Atlantic Gulf & West Indies at 47£ per share, with a dividend of $1 per share, payable December 15, 1948, to be retained by the seller. The offer of the Manufacturers Trust Company was subject to the following terms:
“If between 60,000 and 75,000 shares are deposited in acceptance of the offer by 3 p.m. on December 10, 1948, all deposited stock will be purchased. If more than 75,000 shares are so deposited, the purchasers reserve the right either to accept all shares deposit ed or to purchase not less than 75,000- shares on a pro rata basis. Should less than 60,000 shares be 1 deposited, the purchasers reserve the right to accept and pay for such number of shares deposited, and also reserve the right to extend the final deposit 'date by not more than 14 days. Our customers represent that this offer to purchase is for investment and no other representations are made.”
Following the conversation with Mrs. Levenburg on December 2,1948, at which time the market price of the stock was 451, Mr. Plotkin made out an order directing the defendant’s New York office to tender plaintiff’s 300 shares to the Manufacturers Trust Company. This order was received in defendant’s New York office on December 2, 1948, at 2:29 p.m. On December 3, 1948, defendant’s New York office delivered the stock to the Manufacturers Trust Company.
On December 10,1948, plaintiff, Annette J. Levenburg, instructed defendant company to cancel the sale of the stock. On December 13, 1948, plaintiffs 'came to defendant’s office in Detroit and talked with Mr. Plotkin. As a result of this conversation defendants wired their New York office “Client would like to bust exchange if possible and sell at market.” On this date the market price of the stock was 551. Upon receipt of the telegram the New York office contacted the Manufacturers Trust Company, and was advised by its officer in charge that there was no right to withdraw the offer to sell the 300 shares of Atlantic Gulf & West Indies Steamship Lines.
On December 16, 1948, defendant company received a letter from plaintiffs demanding a reinstatement of the stock. On December 23, 1948, the stock was selling at 641.
The cause came on for trial before the court without the aid of a jury. On March 23, 1950, the court entered judgment in favor of defendant company. In an opinion filed the court made the following finding of facts:
“The court is satisfied from the record in this case, first, that plaintiff, Annette J. Levenburg, was given sufficient information with reference to the proposed transaction by Mr. Plotkin to enable her to reasonably understand the nature of the same, and that if she desired more definite or detailed information from her agent or broker, it was her duty to inquire. Otherwise, he had every reason to believe that she was satisfied with the information in her possession.
“The record discloses absolutely, nothing that was withheld. The record does disclose that this matter was handled in a business-like manner, in accordance with practices, and that there was no bad faith on the part of Mr. Plotkin or overreaching on the part of his employer.
“It further appears definitely that the defendant in this case in no manner profited by the transaction except as it attempted to build the goodwill of a customer.
“There remains but one question. "Was there art order for cancellation which could have been carried, out on December 10th at 11:30 a.m. and was that given?
/T am not going to question for one minute that' witness Annette J. Levenburg said something about ‘Have you sold it?’ That would be, as her counsel stated, a natural remark. The serious question, whether Mr. Plotkin said ‘No’. I wouldn’t be surprised if he might have said T will see what I can do,’ because that is what he did later when they came to the office. He has no recollection of the conversation so we will accept Mrs. Levenburg’s version of it. You will note that she does not ask that the offer be withdrawn, if we are going to be technical. She directs a sale of a stock that has been offered and tendered 8 days before and thebe is no way of determining whether it could have been withdrawn, even at that time. Definitely it could not be sold unless it could be withdrawn and that is a very short time for a principal to give an agent to act.
“The court is of the opinion now, and I think I want you to brief this, that that sale had become absolute, upon this record, because there is no evidence whatever that 60,000 shares had not been deposited. They may have been deposited that day, they may have been deposited a week before, and the minute • they were deposited, the contract, in my opinion, became absolute.”
Plaintiffs appeal and urge that defendant company did not give plaintiffs sufficient information relative to the offer of Manufacturers Trust Company to purchase the stock.
The trial court found as a fact that plaintiff did have such information. We have repeatedly held that in law cases tried before the court, we do not .reverse unless the evidence clearly preponderates in the opposite direction. In the case at bar defendant’s agent, Mr. Plotkin, testified that in the latter part of November, 1948, he discussed the terms of the Manufacturers Trust Company’s offer with plaintiff, Annette J. Levenburg, and acquainted her with the details of the offer, including the Trust Company’s offer to purchase a certain number of shares at a price of $47.50 per share for an undisclosed principal, and that the expiration date of the offer was December 10,1948.
We conclude from the above evidence that the trial court was correct in finding that Mrs. Levenburg had sufficient information concerning the offer to understand it and act accordingly;
Plaintiffs urge that they ordered defendant company to sell the 300 shares of stock, and it was its duty to cancel the order on December 10, 1948, when so ordered by plaintiffs. The difficulty with this theory is that the Manufacturers Trust Company made the offer and plaintiffs accepted the offer. It appears that the stock was delivered to the Manufacturers Trust Company on December 3, 1948, a week previous to Mrs. Levenburg’s order to “cancel the sale.” There is testimony that on December 10th or 13th, 1948, the order to cancel the sale or tender was irrevocable.
Mr. K. B. Atkinson, a witness for defendant, and an employee in defendant’s New York office, testified:
“It is my recollection that we were requested by Detroit to withdraw the item but were not successful. We received that request on December 13th by wire from the Detroit office. It is my recollection that I called the agent, and that they stated that under the terms of the offer, the item could not be withdrawn. It is my recollection that they said it could not have been withdrawn at any time after having been deposited.”
There is competent evidence to sustain the finding of the trial court that on December 10, 1948, the sale had been made and was irrevocable.
The record clearly shows that plaintiffs accepted the offer of Manufacturers Trust Company, and their attempt to cancel the acceptance came too late. The judgment of the trial court is affirmed, with costs to defendants.
Dethmers, Butzel, Carr, Bushnell, Boyles, and Reid, JJ., concurred.
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Sharpe, C. J.
On October 16, 1946, plaintiff, Marcus T. Jones, filed a bill of complaint for a divorce in the circuit court of Lake county, Michigan. Defendant filed an answer denying the charges and later filed an amended answer consisting of a cross bill for separate maintenance. Prom a decree granting defendant separate maintenance, plaintiff appeals.
The parties were married in Chicago on October 7, 1944, and soon thereafter took up their residence in Baldwin, Lake county, Michigan, where they have since resided. At the time of the trial plaintiff was 47 years of age and defendant 39 years old. No children were born as a result of the marriage. In June, 1944, plaintiff purchased a confectionery store for the sum of $10,500 and made a down payment of $1,500, the balance being secured by a mortgage upon the real estate and chattel mortgage on the merchandise, payable at the rate of $500 or more each year. During 1944, there was paid on the principal $2,500, in 1945 $4,000, and in 1946 $2,000. Since purchasing the business plaintiff has spent substantial sums in repairs and modernization of equipment including a new refrigerator. In addition to plaintiff’s business, the building contains a beauty parlor, which rents for $18 per month, and 3 upstairs apartments, one of which rents for $25 per month and one of which was formerly occupied by plaintiff and defendant while they were living-together as husband and wife.
The trial court found as a fact that plaintiff’s yearly net earnings were from $3,500 to $4,000 less his income tax thereon and granted defendant a decree for separate maintenance which provides that as long as she lives in the store apartment, plaintiff is to pay her the sum of $100 per month, but in event defendant elects to live elsewhere, plaintiff is to pay her $135 per month; that defendant is to retain the household furniture, most of which belonged to her prior to her marriage with plaintiff; that plaintiff is to pay defendant $300 which she advanced to him in 1945; that plaintiff pay hospital, doctor and dental bills for services rendered to defendant during their married life; that defendant be enjoined from interfering with plaintiff’s business; that plaintiff be enjoined from selling the real estate unless defendant joins in such sale and also be enjoined from disposing of his stock of merchandise and fixtures except in the ordinary course of his trade and business; and that defendant shall not be entitled to a lien on the store, stock and fixtures as security for the payments of the awards to her as provided in the decree.
Plaintiff appeals and urges that the trial court was in error in granting a decree for separate maintenance on a petition that failed to allege any statutory grounds for divorce. In defendant’s amended answer and cross bill for separate maintenance it is alleged :
“IV
“Defendant further shows that during- the summer of 1946, plaintiff became interested in other girls in and about Baldwin, to the point that he lost interest in defendant and has so associated himself with said girls openly and otherwise that she has been and is now humiliated and embarrassed by his conduct.
“That during the last part of July and the first part of August, 1946, plaintiff and one of his girl friends, whose name will be disclosed upon the trial of this case, entered the store operated by plaintiff and defendant, under the influence of intoxicating liquor and afterwards left the store and went across the street to a tavern where many persons were present.
“That on or about the 10th or 12th day of August, 1946, plaintiff Jones left his store in the afternoon about 5 o’clock and did not return until about 7 o’clock. That plaintiff told defendant that he had been at a certain place with one of his certain girl friends.
“That 3 or 4 days later, defendant unintentionally and quite by accident, discovered plaintiff Jones and said girl friend in a secluded part of plaintiff’s building and both plaintiff and said girl were surprised by being found. Plaintiff Jones being so surprised, had difficulty in adjusting his clothes, particularly his trousers. That defendant spoke to them about their conduct, whereupon she was told by the girl in question to ‘Shut up. We will mop up the floor with you.’
“Plaintiff Jones became angry by being caught in such conduct and said to his girl friend, ‘Give it to her — give it to her.’ The said girl, in Jones’ presence, swore at defendant, and called her vile names and also said to defendant ‘You won’t be here long. I won’t know you very long.’ Whereupon the situation became so intense that defendant had to call for help.
“V
“Defendant further shows that since her marriage to plaintiff she has assisted him in his work and business and by their joint efforts have accumulated considerable money and property.
“That since plaintiff has become interested in certain girls other than defendant, he has kept business affairs from defendant and confided in his girl friends certain business affairs. Plaintiff and one of Ms girl friends were going through, the valuable papers of plaintiff and defendant in the safe owned by plaintiff and defendant whereupon they were surprised by defendant and both plaintiff and his girl friend became angry at defendant and humiliated and embarrassed her.
“That plaintiff Jones has steadily concealed from defendant, money and income from their business, and defendant charges that he has considerable money in hiding awaiting the outcome of this proceeding.
“That during the month of August, 1946, defendant after keeping the store open all evening, closed its doors about midnight and went to her room. Plaintiff Jones was not at the store during the evening but returned later, in a drunken condition, after it had been closed. He broke the glass out of the door and created considerable disturbance along Main street, simply for the purpose of embarrassing and humiliating defendant.
“That on the evening of November 30, 1946, at about 11 o’clock at night, plaintiff Jones had a certain girl friend in his apartment. Said girl friend left Jones’ apartment in great haste when they discovered they had been caught, and immediately Jones was seen not fully clothed and in his bare feet.”
The trial court found as a fact as stated in Ms opinion:
“Without reviewing or discussing in detail the proofs submitted upon the hearing I am satisfied that the evidence is such that the defendant would have been entitled to a decree of divorce, had she so requested, but not having done so, she is entitled to a decree of separate maintenance.
“In most cases the controlling events which justify dissolution of a marriage, occur between the parties themselves in the absence of witnesses and when it is often difficult to determine where the truth rests. In this case, however, several of the instances relied upon have taken place in the pres ence of others, for example, the attack by plaintiff upon’the defendant with a knife on or about June 30th is corroborated in part by disinterested witnesses as well as by plaintiff’s verbal abuse of his wife on one or more occasions in the store in the presence of customers; his intoxication on occasions in and about his place of business, which are not seriously denied as well as his association with other women. These and other incidents covered by the proofs clearly establish sufficient cruelty on the part of the plaintiff to justify a decree for separate maintenance.”
CL 1948, § 552.7 (Stat Ann § 25.87), provides:
“A divorce from bed and board forever, or for a limited time may be decreed for the cause of extreme cruelty, whether practiced by using personal violence, or by any other means; or for utter desertion by either of the parties for the term of 2 years; and a like divorce may be decreed on the complaint of the wife, when the husband, being of sufficient ability to provide a suitable maintenance for her, shall grossly or wantonly and cruelly refuse or neglect so to do.”
CL 1948, § 552.8 (Stat Ann § 25.88), provides in part:
“A divorce from the bonds of matrimony may be decreed for either of the causes mentioned in the preceding section whenever, in the opinion of the court, the circumstances of the case shall be such that it will be discreet and proper so to do.”
The above sections of the statute authorize a court of chancery to grant a divorce for the reasons stated therein. The case at bar is one for separate maintenance under CL 1948, § 552.301 (Stat Ann § 25.211), which provides in part:
“That no decree shall be made in favor of the petitioner unless on the hearing either such a state of facts shall appear as would entitle her, as far as the husband’s wrongful acts are shown, to a decree for divorce upon the grounds specified in the petition.”
In our opinion the cross hill of complaint alleges facts which, if proved, would have entitled defendant to a divorce under the above sections of the statute had she so requested. In cases of this nature, when the husband files a bill of complaint for a divorce and the wife files a cross bill for separate maintenance, we hear the case de novo. In our opinion the record supports the trial court’s finding that plaintiff’s conduct was such as to entitle defendant to a decree for separate maintenance.
Plaintiff also urges that the court was in error in permitting the introduction and consideration of testimony of his use of intoxicating liquors and acts of cruelty as a basis for finding him guilty of extreme and repeated cruelty without allegations in the cross hill that plaintiff had become an habitual drunkard or had practiced extreme cruelty toward defendant.
Defendant’s cross hill charges that upon one occasion plaintiff returned to the store in a drunken condition and also charges other acts of cruelty. In Whitman v. Whitman, 286 Mich 458, we held that while the statute relating to divorce does not define extreme cruelty, yet such a determination may be made from the facts and circumstances of each case. We do not find any merit in this claim urged by plaintiff.
It is also urged that the court was in error in admitting and considering evidence of events occurring after the institution of plaintiff’s suit for divorce. The bill of complaint was filed October 16, 1946. The amended answer and cross bill of defendant was filed April 12,1947. There was no testimony offered relating to the conduct of plaintiff after the date of the filing of defendant’s cross bill. Plaintiff relies upon Cooley v. Cooley, 320 Mich 209, where we held that testimony by plaintiff of matters occurring subsequent to the filing of her bill of complaint was not admissible. In the Cooley Case no cross bill was filed as in the case at bar. In the instant case defendant’s cross bill has the same status as an original bill of complaint. It was not error to admit evidence relating to plaintiff’s conduct prior to the filing of defendant’s cross bill.
It is also urged that the court permitted defendant’s counsel to ask leading questions which in effect amounted to testimony. It is to be noted that no objections were made. One of these was the following question asked of defendant: “Do you recall a time last summer in June or July in the evening when your husband was chasing you with a knife, do you recall the incident? A. Yes.” It is to be noted that no objection was made either to the question asked or the answer given. In our opinion an objection at this time comes too late. Moreover, there is sufficient evidence to support a decree for separate maintenance without taking into consideration the above evidence. It must be assumed that the court disregarded all evidence improperly admitted. See Lukshaitis v. Lukshaitis, 314 Mich 426.
It is also urged that the allowance provided for the wife for separate maintenance was excessive. There is evidence to support the finding of the trial court that the earnings of the business amounts to $3,500 to $4,000 per year, but we have in mind that these earnings occurred while defendant was giving her services to the business. We think the amount of alimony allowed defendant is excessive. A decree will be entered providing that plaintiff pay defendant the sum of $75 per month as long as she occupies the apartment formerly used by plaintiff and defendant for her separate use and in event that defendant elects to reside elsewhere than in her present living quarters, plaintiff shall pay defendant the sum of $100 per month.
The decree also provides that plaintiff pay defendant the sum of $300 which she advanced to him in 1945. It is to be noted that in defendant’s cross bill there is no mention of this amount and in the relief asked for we find the following:
“(b) That she be decreed such portions of plaintiff’s income and revenue from his property as this court shall determine to be just and equitable for her support and maintenance.”
The effect of this portion of the decree was to grant certain relief not authorized by the statute. The act in question (CL 1948, § 552.301) empowers the court to “allot, assign, set apart and decree to her as alimony the use of such part of her husband’s real and personal estate, or such proportion of his earnings, income or revenue as the court may determine.” Nor is there any .authority in the act for requiring plaintiff to pay defendant’s hospital, doctor and dental bills. There are other methods of collecting these items.
The trial court was not.without authority in requiring plaintiff to pay defendant’s counsel an attorney fee in the sum of $100 within 60 days. See Court Rule No 5, § 6 (1945). Nor did the trial court exceed its authority in enjoining defendant from taking any part in the management or conduct of plaintiff’s business, or in ordering that plaintiff be enjoined from selling, encumbering or disposing of the personal property and fixtures of the business except in the ordinary course of trade.
The decree as modified will be affirmed, but without costs.
Bushnell, Boyles, Reid, North, Dethmers, and Carr, JJ., concurred with Sharpe, C. J.
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Reid, J.
Intervenor and appellant General Motors Corporation appeals from an order of the circuit court reversing a finding and award by the appeal board of the Michigan unemployment compensation commission. Several employees of appellant corporation filed claims (involved on this appeal) for unemployment compensation and such claimants are hereinafter, for convenience, referred to as plaintiffs. For convenience, the appellant corporation is referred to as General Motors.
Appellant’s statement of the question involved is substantially as follows: Was the finding of fact of the appeal board of the Michigan unemployment compensation commission that the unemployment of plaintiffs, subsequent to December 18, 1945, was caused by a labor dispute in which plaintiffs were involved, contrary to the great weight of the evidence so as to be subject to reversal by the circuit court pursuant to CL 1948, § 421.38 (Stat Ann 1947 Cum Supp § 17.540) ?
General Motors functions through several unincorporated divisions, 2 of which are Buick Motor Division and Fisher Body Division. Buick Motor Division has its plants and offices at Flint, Michigan. Fisher Body Division operates its plant No. 1 at Flint. All plaintiffs are employees of General Motors in either Buick Motor Division or Fisher Body Division, plant No. 1.
All the frames for Buick automobiles are manufactured by Midland Steel Products Company, located at Cleveland, Ohio. The frames are shipped by rail to Flint, arriving in Flint the third day after shipment. When need is urgent, the frames are shipped by truck from Cleveland and arrive the following day in Flint.
Midland Steel Products Company resumed production for peacetime purposes on September 25, 1945, and shortly thereafter encountered a slowdown on its assembly line assembling Buick frames. During the period between September 25, 1945 and November 1, 1945, Midland Steel Products Company was never able to produce the number of frames ordered by Buick Motor Division.
On November 1, 1945, Midland Steel Products Company notified Buick Motor Division that because of' labor difficulties, production of Buick frames would be discontinued until such labor difficulties were adjusted. On each day thereafter Buick contacted Midland Steel requesting resumption of production of Buick frames.
Because of lack of frames, Buick had to discontinue operation of its main production line after November 14, 1945, and it was necessary to discontinue or curtail operations in other departments whose functions were dependent upon the operation of' Buick’s main assembly line, by which the Fisher Body Division, plant No. 1, became affected. The-shortage of frames was expected to be brief. The-main assembly line of Buick Motor Division was left filled with frames in order that production could be resumed without delay upon resumption of supply of frames.
Because of this temporary shutdown, approximately 1,360 employees whose work was affected by the frame shortage, were sent home by Buick Motor Division, with instructions to watch for newspaper or radio announcements for a recall to work. The employees who were thus sent home were retained on the active employment rolls; they were not given a “K” release by the personnel department as in the case of an ordinary layoff due to a reduction in force, and were permitted to keep their badges.
On November 12, 1945, Fisher Body Division, plant No. 1, was informed by Buick Motor Division that Buick could not continue the operation of its assembly line due to a shortage of frames. Because Buick Motor Division could not continue to receive automobile bodies unless tbe main assembly line was in operation, it became necessary for Fisher Body Division, plant No. 1, to shut down its assembly line at the end of the first shift on November 13, 1945. The paint, trim and final assembly departments of Fisher Body Division, plant No. 1, were shut down on November 14,1945, and as a result, 1,660 workers out of a total of 3,879 hourly rated employees at Fisher Body Division, plant No. 1, were temporarily sent home, with instructions to watch the newspapers and listen to the radio for notice of resumption of operations. Also, notice was posted on bulletin boards of the Fisher Body plant as follows:
“Present indications are that operations will be resumed in about one week. Notice of resumption of operations will be broadcast to employees by radio (WFDF) and local newspaper announcements.”
All employees who were thus sent home because of the temporary shutdown were retained on the active employment rolls and they were given no formal release as in the case of a layoff due to reduction in working force.
In all, approximately 3,500 employees of General Motors were affected by the inability of Buick Motor Division to obtain frames from Midland Steel.
On November 21, 1945, the UAW-CIO called a strike at the various plants of General Motors, including Buick Motor Division and Fisher Body Division, plant No. 1. This union was certified by the national labor relations board as the exclusive bargaining agent for the production and maintenance employees of both Buick Motor Division and Fisher Body Division, plant No. 1, including the claimants, who were either members of the union or members of the bargaining unit represented by the UAW-CIO. The strike was called by the union when the union’s demand for a 30 per cent, increase in wages was not met by General Motors. The labor dispute was terminated on or about March 13, 1946.
On December 13, 1945, Midland Steel Products Company resumed production of Buick automobile frames. At that time Midland Steel Products Company had 13 Buick frames available for shipment. On December 13, 1945, Midland Steel manufactured 125 frames for Buick and on December 14, 1945, it manufactured 165 frames for Buick. However, because of the strike, above referred to, and the inability of Buick Motor Division to receive the frames at that particular time, the frames were not shipped to the Buick plant at Flint. Midland Steel continued to manufacture frames for Buick with daily production in excess of the number of frames which were produced prior to November 1, 1945. By Buick’s instructions, such frames were stored by Midland Steel for the account of Buick.
By January 3, 1945, Midland Steel had stored 3,000 Buick frames, which used their maximum storage capacity. They therefore on that date began to ship automobile frames to Flint for Buick, by consigning the frames to a third party designated by Buick Motor Division. These frames were stored at Flint for the account of Buick. They were not delivered at the Buick plant for the reason that the plant was strikebound and there were no employees in the plant to receive and unload the frames.
By December 17, 1945, Buick could have had 303 frames in its plant, and the frames produced by Midland Steel on December 17, 1945, could have been available at the Buick plant on December 19, 1945. Therefore, appellant claims (and the finding of the appeal board found such claim correct) that appellant would have set December 18, 1945, as the date for the resumption of production at Buick and all employees who were temporarily sent home between November 13 and November 20, 1945, would have been called to work on that day were it not for the labor dispute prevailing.
We are not concerned with the allowance of unemployment compensation between November 14, 1945, when Buick Motor Division stopped its main production lines for want of frames, and December 18, 1945, when Buick claims it was ready to resume and would have resumed except for the strike. Award for such period, November 14th to December 18th, is not questioned. The work stoppage during that period was due to a strike in progress at Midland Steel, in which strike the employees of Buick and Fisher Body Division, plant No. 1, were not involved. There is left for our consideration the matter of claimed compensation from December 18, 1945, to March 13, 1946, on which latter date the strike at the General Motors plants was ended. General Motors claims that on December 18,1945, they were able to resume production and would have done so, had plaintiffs not been out on strike. Plaintiffs claim that, even though a strike condition did exist, there is not sufficient nor competent proof that General Motors (Buick Motor Division) would have resumed production on December 18,1945.
General Motors on December 10, 1945, cancelled its bargaining agreement with the UAW-CIO. Plaintiffs contend that such cancellation, which was after the strike had been called on November 21, 1945, had the effect of indicating intervenor’s intention not to re-employ plaintiffs. This contention cannot be sustained for the reason that a strike (which gave rise to the cancellation) was already in existence at the time of the cancellation and still in progress. Further, the cancellation in question did not prevent General Motors from calling its employees back to work if they had been willing to return. Plaintiffs were bound by the disqualifying provisions of subdivision (c) of section 29 of the unemployment compensation act, PA 1936 (Ex Sess), No 1, as amended by PA 1943, No 246 (CLS 1945, § 8485-69 [Stat Ann 1945 Cum Supp § 17.531]), hereinafter quoted. It is to be noted that the employer at no time notified any of the employees of any unwillingness to recall them to work. Under the testimony in this case, the appeal board was justified in finding that the fact that the plant was shut down was entirely due to the strike. So far as concerns claims for unemployment compensation, as long as the strike condition existed and there was no indication •on the part of the strikers that the strike was over, the employer was not put to the duty of going through the formality of recalling the employees. There was testimony to warrant a finding that the existing conditions indicated the futility of attempting such recall.
Section 29 of the Michigan unemployment compensation act, PA 1936 (Ex Sess), No 1, as amended hy PA 1943, No 246 (CLS 1945, § 8485-69, Stat Ann 1945 Cum Supp § 17.531), provides in part as follows :
“An individual shall be disqualified for benefits: * #- #
“(c) For any week with respect to which his total or partial unemployment is due to a stoppage of work existing because of a labor dispute in the establishment in which he is or was last employed: Provided, however, That no individual shall be disqualified under this section if he shall establish that he is not directly involved in such dispute. For the purpose of this section, no individuals shall be deemed to be directly involved in a labor dispute unless it is established:
“(1) That, at the time or in the course of a labor dispute in the establishment in which he was then employed, he shall in concert with 1 or more other employees have voluntarily stopped working other than at the direction of his employer, or
“(2) That he is participating in or financing or directly interested in the labor dispute which caused the stoppage of work: Provided, however, That the payment of regular union dues shall not be construed as financing a labor dispute within the meaning of this subsection, or
“(3) That at any time, there being no labor dispute in the establishment or department in which he was employed he shall have voluntarily stopped working, other than at the direction of his employer, in sympathy with employees in some other establishment or department in which labor dispute was then in progress.
“(4) That at any -time, there being no labor dispute in the particular establishment or department or unit in which he was then employed, he shall have become unemployed because of a stoppage of work which was directly caused in his particular establishment or department or unit by and solely because of a stoppage of work due to a labor dispute which was then in progress in some other establishment or department or unit of the same employing unit by whom he was then employed.”
The burden of proving their eligibility to compensation benefits is on the plaintiffs. Phillips v. Unemployment Compensation Commission (syllabus 7), 323 Mich 188.
Plaintiffs were all employees of General Motors, they were all engaged in producing parts for or in carrying on production for the manufacture of Buick cars. They were all members of the same union which ordered the strike. There is sufficient showing in this record from which the appeal board could find' that plaintiffs were all members in different departments of the same establishment. See Chrysler Corp. v. Smith, 297 Mich 438 (135 ALR 900), and Abbott v. Unemployment Compensation Commission, 323 Mich 32.
After the layoff consequent upon the shortage of frames, certain employees continued to work until a general strike of all employees in this controversy was ordered. After the calling of the general strike, resumption of production was impossible as long as the general strike continued.
Appellant claims (and the finding of the appeal board is in accordance with such claim) that the reason that no order for resumption of production was issued was that frames could not be delivered into the plant due to the strike, and that it would have been impossible to resume production at either the Buick or Fisher plants unless the employees who went on strike on November 21, 1945, returned to work.
By a referee’s decision dated April 24, 1946, benefits were granted to the claimants herein for the entire period of their unemployment, including the period of stoppage of work due to the general strike. Appellant General Motors took an appeal from this decision and on January 30, 1947, the appeal board of the Michigan unemployment compensation commission adopted without alteration the findings of fact by the referee so far as the findings are quoted in the appeal board’s decision, and the appeal board rendered its decision modifying the decision of the referee and holding, “that the claimants involved herein will be disqualified for unemployment benefits under the provisions of section 29 (c) of the act from December 18, 1945, and for the duration of their unemployment due to the stoppage of work existing because of the labor dispute in the establishment in which they were last employed.”
On the application of the plaintiffs, a writ of certiorari was issued by the circuit court on February 14,1947, and on September 9,1947, judgment by the circuit court was entered for the plaintiffs.
The circuit court held that the finding of fact by the appeal board to the effect that the unemployment of plaintiffs, subsequent to December 18, 1945, was not caused by the lack of work but rather was caused by the labor dispute (strike), was contrary to the great weight of the evidence as presented at the hearing before the referee, and the circuit court allowed benefits to plaintiffs for the entire period of their unemployment, thereby reversing the decision of the appeal board. Under the statute, it was necessary for the circuit judge, in order to reverse the decision of the appeal board, to find that the decision was contrary to the great weight of evidence. (CL 1948, § 421.38 [Stat Ann 1947 Cum Supp § 17.540].)
The important question in this case turns upon the testimony of Robert M. Wagner, general production manager for Buick. Mr. Wagner testified that because Midland Steel had 303 Buick frames available at the close of business on December 14, 1945, and because there was a condition of readiness in both General Motors plants, and General Motors was assured of a continued supply of parts necessary for resumption of production, he, Mr. Wagner, would have made the recommendation for the resumption of production on December 18, 1945. The circuit judge ruled that the testimony of Wagner to the effect that he would have set December 18th is speculative, is a conclusion and cannot be considered in determining the facts in this case. Mr. Wagner testified on direct examination as follows:
“As head of the production department it is my job to first build up the master car building schedule. That is done, of course, in conjunction with the sales department and the general manager. Prom that schedule it is my job to break down individual schedules on all components, whether manufactured by us or brought in from the outside. In case of the parts which we manufacture, I furnish the various factories and departments their schedules of operations. In the case of those parts furnished from outside of the plant the schedules are turned over to the purchasing department. After the material is purchased and brought in to the factory, my department again picks it up and handles the receipt, storage and movement of material throughout the factories. # # #
“Q. What date would you have set for resumption of production?
■ “A. December 18th.
“Q. What factors, briefly, would determine December 18th as the date for resumption of production ?
“A. By December 17th we could have had 303 frames in our plant, the frames produced on the 17th could have been made available not later than Wednesday morning.
“Referee: Wednesday morning, what date?
“A. Wednesday would have been the 19th. They [we] were apparently producing at the time of the shut down about 200 cars a day. In other words, we would have had — we produced 200 cars on the first day, we would have had 100 frames to start the following morning, then the frames shipped on Monday would have been there before that 100 frames would have been exhausted.
“Q. Mr. Wagner, did you give such an. order for resumption of production?
“A. I did not.
“Q. Why not?
“A. Because I couldn’t get frames in on account of the strike.
“Q. If you had ordered a resumption of production on the 18th, would it have been a complete resumption of production for all factories ?
“A. It would have been an order for a resumption of all factories.”
Moreover, we note the following from the testimony of Mr. Wagner on cross-examination by plaintiffs’ attorney:
“Q. However, there would be other factors involved in your arriving at a decision other than frames, would there not?
“A. There might have been, yes; I knew we' were in shape to overcome any other difficulties. * * *
“Q. Now, the frame has been testified to here as a very essential part in the production of an automobile. That being the case, and particularly since you were so close to the beginning of operations, would you not have made a check among the superintendents to determine whether or not they were ready to proceed with production in the event that frames were available?
“A. It wouldn’t have been necessary.
“Q. That is on the assumption that they are ready to shoot, is that correct?
“A. It isn’t an assumption.
“Q. Well, you are stating then that it is your belief that they did have sufficient parts and they were ready to proceed with production provided that you had frames, is that correct?
“A. That is right.
“Q. But in any case, I understood your testimony that you would have called a superintendent’s meeting?
“A. Yes, that is right.
“Q. Now, if what you say is correct, that is, that they were ready to go — they were waiting for frames —what would have been the purpose of a superintendent’s meeting?
“A. I believe I explained that. To notify them of our plans, enable them to call back the individuals, to frame the notices for the papers and the radio announcements.
“Q. And would that have been the sole purpose?
“A. That is right. * * *
“Q. Before you make your decision to resume production as you said, on the 19th [18th], would you have called in the superintendent or the factory manager of Fisher Body?
“A. We would certainly have notified them.
“Q. Would they he at this meeting that you talked about?
“A. No.'
“Q. Before the meeting would you have contacted them to determine what their situation was?
“A. Certainly.
“Q. Why would you do that?
“A. I am afraid that I spoke too fast. I wouldn’t have had to contact them to know what their situation was. I have been in contact constantly with him [them] ; I would simply have had to notify them that we were going to call our men in and must have bodies by a certain date.”
Plaintiffs argue that there is no showing that, all the plaintiffs would have been recalled on December 18, 1945. However, Mr. Wagner testified in reference to December 18, 1945:
“Q. You would have called back approximately 3,500 people with only the assurance that you could give them 6 days work, isn’t that right ?
“A. That is true from what frames we actually had on hand.”
Mr. Belbin, assistant personnel director of Buick Motor Division, testified:
“Q. On the resumption of production, would the call back also apply to the group ? [referring to Buick Motor Division]
“A. That is right.”
We find, after considering all of the testimony in the case, that the appeal board had before it sufficient competent testimony to warrant the finding that all the plaintiffs would have been called back upon resumption of activities on December 18, 1945, had there been no strike. Further, no testimony is quoted by plaintiffs to show that any one or more of plaintiffs would have been left out of the recall to work for reasons peculiar to those individuals.
The testimony of Mr. Wagner that he would have set the date of resumption at December 18, 1945, is not a mere speculation on his part. There is sufficient in the facts testified to, to warrant the appeal board in finding that such date would have been set. In the testimony of Mr. Wagner, including what is not quoted in this opinion, and in other testimony in the case, there are stated sufficient facts to indicate to the appeal board that December 18th would have been the date when resumption would have occurred if the strike had not then been in force.
We have had occasion to consider objections to the competency of the testimony of a production manager under circumstances giving more room for argument than exists in the instant case. See Abbott v. Unemployment Compensation Commission, supra, 47. The objection in the briefs in the instant case to the testimony of Mr. Wagner is not well taken.
We find that the decision by the appeal board is not contrary to the great weight of the evidence and accordingly, the decision of the appeal board must be affirmed.
The judgment of the circuit court is reversed and the cause remanded to the circuit court with instruction to remand the matter to the unemployment compensation commission to proceed with carrying out its award, as determined by the appeal board. No costs, a question of public importance being involved.
Sharpe, C. J., and Bushnell, Boyles, North, Dethmers, and Carr, JJ., concurred. Butzel, J., did, not sit. | [
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Btjtzel, J.
Virginia Charlotta Stephenson, plaintiff herein, on September 20, 1945, filed a bill for divorce against William Burnette Stephenson. Later she joined as codefendants Burnette F. Stephenson, father of William Burnette Stephenson, and herein referred to as defendant’s father, and also Shirley Miles, a woman with whom defendant was living at the time of the hearing, each of whom she alleged had conspired with defendant to deprive plaintiff of her rights in certain properties. Plaintiff charged defendant with extreme and repeated cruelty, excessive use of intoxicants, indecent language, frequent association with other women and absences from home. At the hearing in January, 1950, defendant made no effort to deny plaintiff’s charges nor did he make any counter charges, or attempt to excuse his conduct. The judge granted plaintiff a divorce and custody of the minor children of the parties, subject to certain rights of visitation by defendant. The decree provided for the payment of medical and dental expenses for the children only after approval of expenditures by the court, and also for the payment by defendant of $25 a week for the support of the 2 minor children. It also provided for payment by defendant of an' attorney fee of $150. Plaintiff was not awarded any alimony. The judge made no property settlement as he had held that defendant had no property or rights which plaintiff alleged were being withheld or concealed through a conspiracy. Plaintiff, however, claims on appeal that the conspiracy through which defendant’s property rights are being withheld and concealed was proved, that she is entitled to a property settlement, a far larger attorney fee, more ample provision for the support of the minor children and alimony for herself.
Plaintiff and defendant were married on May 14, 1931, when he was 18 and she 17 years of age. They lived together, with the exception of short intervals, until September 15, 1944. They are the parents of 2 children, a daughter now 20 years of age and a son about 16 years of age.' Several previous divorce proceedings, begun by plaintiff, had been discontinued following temporary reconciliation. Were it not of importance, considering the charges of conspiracy . against the respective codefendants, we would refrain from further discussion of defendant’s reprehensible conduct. Besides the other charges against him, his philandering would indicate that he was .unmoral in his. conduct towards women. Otherwise he can be described by the statement of defendant’s father who, when asked about his son’s affairs with women, testified that he was too busy writing checks for payment of his son’s gambling debts, or things like that and that while plaintiff had consulted him •about defendant’s gambling and drinking he had no recollection of talking to her, or of her ever complaining about his son’s philandering; that when he learned that his son was living with another woman and had a son by her, he was shocked but that he did not reproach him in any way because a suit was pending. Testimony positively proves that defendant was still married to plaintiff while he was living under the same roof with codefendant Shirley Miles and had a son by her. Defendant’s father stated that ho mot Miss Miles while she was working at a cherry orchard at Lexington, Michigan, owned or controlled by his company, and that' “she had driven her husband over- to work, I mean William Burnette Stephenson.” When his attention was called to the use of the word “husband” he asked to withdraw his answer and correct it. It is seldom that a court is called upon to review such brazen conduct as that of defendant and Miss Miles with whom defendant was living while plaintiff was trying to make a living for herself and children and had to be assisted by the help and charity of others. The intimate association of defendant with Miss Miles enters largely into the discussion of what is heretofore referred to as the Lexington property.
In the charges of conspiracy in the amended bill of complaint, plaintiff claims that defendant’s father conspired with defendant to dispose of or to divest plaintiff of title in a piece of property outside of Detroit, Michigan, which we shall refer to as the home in Berkley, Michigan; the Ten Mile road property in Oakland county, Michigan; property at Woodward and Richton avenues (Highland Park, Michigan) ; and interest in a house on Longfellow avenue in Detroit, Michigan. Plaintiff also charges that defendant conspired with Shirley Miles so as to deprive plaintiff of an interest in a cottage along the lake shore at Lexington, Michigan, which plaintiff claims belonged to plaintiff and defendant. Inasmuch as on appeal plaintiff does not appear to claim any direct wrongdoing or conspiracy as to the Ten Mile road property, we need not discuss any facts in regard to it.
Shortly after their marriage, plaintiff and defendant purchased a home on Edgewood boulevard in Berkley, Michigan, and resided there until the summer of 1940. At that time they separated as a result of defendant’s infatuation with another woman. Defendant left for Chicago and was later joined by plaintiff after a reconciliation. Plaintiff had joined in mortgaging the Berkley home about 1937. In 1940, when they contemplated leaving Berkley, there was an outstanding sheriff’s deed on foreclosure of the mortgage, as well as some $1,800 in bills unpaid by defendant. These obligations were taken care of by defendant’s father who sold the property, sending to plaintiff in Chicago the balance of the purchase price that was left after payment of the mortgage and debts. Plaintiff and her husband signed a quitclaim deed to Ms father as a consideration for his assuming the obligations. Plaintiff contends that she received nothing personally from the transactions and that the money she received she used to pay her husband’s debts. She admits, however, that part of it went to pay hospital bills incurred by her during the time the parties were separated. "We find that no conspiracy of any kind was proven as to the Berkley property.
Upon the death of Monica Stephenson, the first wife of codefendant Burnette P. Stephenson, certain assets came into his hands as defendant’s guardian. Defendant and his brother inherited a fine residence at 131 Longfellow avenue, Detroit, Michigan, from their mother Monica Stephenson. Defendant’s father had lived there for the past 20 years and upwards and was living there in 1931 before plaintiff and defendant married and moved to their own home. According to the testimony of defendant’s father, the Longfellow avenue house is a 3-storv structure with 10 rooms, a kitchen and 3 baths. The property was originally encumbered with a $14,000 mortgage which the father paid over the years. In 1939, defendant and plaintiff signed a deed for defendant’s one-half interest in the property for a consideration of $2,000. The deed was made to the brother instead of to the father because the latter was having trouble in regard to Ms income tax and feared that a government lien would be placed against the property if title were taken by him. The brother subsequently deeded the property to defendant’s father. There seems to be little question but that plaintiff and defendant were at least to a degree subject to the direction of the father, who was frequently putting up money, some for the support of defendant but principally to pay defendant’s debts. Defendant’s father at one time owned the Stephenson Land Company and still seems to be in full control of it. As a rule defendant’s withdrawals came from the Stephenson Land Company but the father was the real party from whom eventually the moneys came. Plaintiff claims that defendant’s father promised her, when she signed the deed for the Longfellow property, that he, defendant’s father, would see to it that neither she nor his grandchildren by her would come to want. Defendant’s father denies this. It would seem quite natural that he might have made some such statement and unquestionably large sums of money were paid to defendant and smaller amounts to plaintiff but this is far from proof of a conspiracy. The record would indicate that $2,000 was a very low price for defendant’s interest in the equity in the Longfellow home; further, that defendant’s father had been living in the house these many years, both before and after the deed, without paying any rent. Nevertheless, plaintiff and defendant signed the deed and proof of conspiracy is lacking.
In 1937 an interest in certain property at Woodward and Bickfcon avenues in Highland Park, Michigan, was the only asset of value left in the guardianship estate. This property was heavily mortgaged and evidently did not bring in a sufficient return to take care of the carrying charges. It has frequently been brought to our attention that in the 1930’s prop erty values were still depreciated and similar property was frequently referred to as distressed real estate. Although plaintiff with her limited experience may not have been familiar with estate affairs, she joined in the deed of conveyance of the Highland Pai'k property at the request of her father-in-law and thereby alienated her interest. She now contends there was no necessity ■ to soil the property and that the money received from the sale went to pay her husband’s debts and she received none of it personally. This is far from proof of any conspiracy to deprive her of property rightfully hers.
Defendant, in addition to being an heir to one-half of the estate of Monica Stephenson, was also an heir to one-sixth of the estate of James W. Flynn. The latter’s estate was a sizable one, a large part of it consisting of stocks, some of which became worthless. As guardian of defendant, the latter’s father for years failed to file an annual account. "When he finally did so it showed that defendant’s interest in the estate had been entirely used up. The final account was approved by the probate court and defendant’s father was discharged as guardian.
As we have noted, the real estate involved herein, with the exception of the Lexington and Berkley properties, was under the direct control of defendant’s father as administrator of the estate of James W. Flynn, the estate of Monica Stephenson, and the guardianship estate of his 2 sons. Plaintiffs attorney sought to inquire into alleged irregularities in the handling of the funds of defendant in such estates by the father, also in the books and records of the Stephenson Land Company, from which defendant evidently was able to draw moneys but had no stock interest so far as the record shows. It is quite apparent that defendant’s father controlled the Stephenson Land Company, of which he was the sole owner for a long period and subsequently held a majority interest. The.net worth .of the Stephenson Land Company is not shown. It had 3,000 shares of stock. .
We realize the difficulty that plaintiff’s attorney had in his attempt to show fraud and conspiracy. Grave grounds of suspicion were shown with innuendo but no actual proof of a conspiracy. The charges are rather vague. Plaintiff claims that the conspiracy began as early as 1940. The property at Woodward and Pichton avenues in Highland Park was transferred in 1937. As a matter of fact, however, plaintiff had full knowledge of the documents she was signing or opportunity to learn about them. At times she received checks payable to her and she used the proceeds to pay not only her husband’s debts but for the family support. Defendant is not questioning any of the transactions. If any fraud was committed by the fiduciary it'was against the defendant, and plaintiff’s loss therefrom would at the most be too indirect to entitle her to recovery. Although it is charged that there was a conspiracy between father and son to put the son’s property beyond the reach of plaintiff and thus prevent her from obtaining a property settlement as well as alimony, we find lack of sufficient proof to warrant a decree in this respect in plaintiff’s favor. The trial judge held that there was not sufficient proof and we cannot disturb his judgment in that respect as no claimed error was shown.
We do find a distracted father trying to help his son who was constantly in trouble. The record does not, however, indicate that the father suffered any financial loss thereby. His occupation of the home on Longfellow avenue in Detroit without paying rent and then purchasing his son’s equity therein for only $2,000, as well as the many other facts that were developed in the case, would indicate that the father was protecting himself financially and not plaintiff or her 2 children, to whom he stood in such a close relationship.
Plaintiff had an expert accountant make a limited examination of the account of defendant as reflected on the books of the Stephenson Land Company and the files of the probate court for Wayne county in .the matter of the estate of Monica Y. Stephenson and in the father’s guardianship of defendant and his brother. The court refused to permit any testimony in regard to the guardianship matters as reflected by the files of the probate court.
It will serve no useful purpose to go into the many details of the guardianship account as the charges of fraud, which we do not believe were proven, are not being made by defendant. It is indicated that defendant’s father charged large sums expended for the defendant to the guardianship account and thus exhausted its assets. There is no doubt that the entire account was handled carelessly but defendant himself makes no claim to that effect, nor does there appear sufficient proof of any conspiracy so as to warrant relief to plaintiff on that ground.
We believe the court was correct in its ruling as to the expert accountant’s report inasmuch as no conspiracy to defraud was established and the final account in the probate court was allowed and the guardian discharged. We have examined the report of the expert accountant and we find that it discloses no fraud. It is true that the reports of defendant’s father were very general in their terms but they disclose no fraud and the probate court saw fit to allow them. Without proof of conspiracy we do not believe that plaintiff is now entitled to attack them, and the trial court was correct in excluding the expert accountant’s reports regarding the probate court files.
The trial judge held that defendant had no interest in the cottage or home at Lexington, Michigan, formerly occupied by the parties. In the summer of 1944 defendant, after having had numerous jobs which he eventually lost, was again employed by the Stephenson Land Company and sent to Lexington, Michigan, to supervise a cherry orchard which it owned, lie was soon joined there by plaintiff and their children who remained a large part of the summer. It was difficult to find a house to live in but an unfurnished cottage was found. An agreement was entered into with Fred Wood, the owner, now deceased, to waive a down payment for the purchase of the property if it were immediately improved. $100 was paid to Mr. Wood for a binder by the Stephenson Land Company, to whom a receipt was issued. According to defendant, he was to pay $325 on December 26, 1944, to obtain a land contract. He asserts that the property was to be bought in his name alone although he admits that at the outset of the dealings with Mr. Wood, plaintiff appears to have participated. Although defendant claims that there were no other written documents, there is a very strong indication to the contrary. It appears that Wood addressed both plaintiff and defendant when he wrote in reference to their contract. Plaintiff’s sister testified that she was shown such a land contract in, the summer of 1944. Improvements specified in the oral contract were made, the Stephenson Land Company advancing $1,058 for that purpose. Although defendant testified to the contrary, plaintiff and her sister both insisted that plaintiff performed manual labor while helping with the improvements on the inside of the house.
Plaintiff later returned to Chicago but defendant refused to follow her and remained in Lexington after the summer ended. Illinois divorce proceedings were begun by plaintiff but discontinued: In November of 1944 the Stephenson Land Company wrote to plaintiff asking her to execute a quitclaim deed and also an' 'assignment of the land contract for the Lexington property to the Stephenson Land Company in order to protect it for the $1,058 which it advanced for the improvement of the property. Plaintiff would not sign these documents despite the fact that defendant’s father .refused to send money for her support if she did not do so. Defendant claims that both he and plaintiff were later served with papers through the mail canceling their interest in the property, for the protection of the company, but plaintiff denies this.
Plaintiff returned to Michigan at the end of the year. While plaintiff was in Chicago, defendant met codefendant Shirley Miles and they planned to get married after plaintiff secured a divorce. Miss Miles was a waitress in the hotel' at Lexington, Michigan, when defendant met her. She must have known that defendant was a married man when she became so intimately acquainted with him. She testified that when she learned that defendant would be unable to assume the land contract on- the Lexington property she used funds of her own and obtained a contract for the property but did hot produce it as she was unable to find it.
The original papers for the purchase of'the property from Mr. Wood were not produced, the'claim being that when Mr. Wood died these papers also were lost. Miss Miles testified that so far as ■ she knew there had been no previous contract. She claims that she did not know of any interest that either plaintiff or defendant still had in' the property when she made the alleged new contract with IVoocl. Plaintiff also was unable to produce the contract entered into by defendant, with or without her, while defendant claims there was none. If there were, it would probably have been in defendant’s possession. The attorney who had acted'f or defendant’s father and the Stephenson Land Company, did draft the aforementioned quitclaim deed and assignment of land contract for the Lexington property to be signed by plaintiff. When attorney for plaintiff undertook to cross-examine this attorney, an objection on the ground that there was a confidential client-attorney relationship was sustained by the trial judge. While plaintiff’s attorney objected to the ruling, it becomes unimportant for there is a legitimate inference to be drawn from the facts which were disclosed, that plaintiff must have had an interest in the property as otherwise she would not have been asked to sign a quitclaim deed and an assignment of land contract.
Miss Miles testified that on February 28,1945, she paid down $963.03, borrowing $650 from her brother to make the payments and assuming its obligations of $40 a month. The total purchase price of the property was $4,436.36, plus $800 borrowed from Mr. Wood for improvements. With the exception of such work as plaintiff did in improving the property in 1944, all of the other work in making substantial improvements was done by defendant who also paid for all work and material furnished by others. He also had made all the payments on the contract for the house for 1946 and thereafter. Miss Miles has not worked since 1945 with the exception of earning $75 for some typewriting work for the Stephenson Land Company.
There is no indication in the record as to the present value of the Lexington property. There appears to be a substantial equity in the property over and above the amount still due the title owners. If Miss Miles has ever put any money into this property she has received back an equivalent value in the years during which she has occupied the property rent free. The costs in the case, with an increased attorney fee, will be very substantial. The printed record alone contains 589 pages. Inasmuch as defendant .has made it difficult at times to collect the $25 a week awarded for the support of the 2 minor children, it may also be correspondingly difficult to collect the costs, including an increased attorney fee. We, therefore, order that unless such costs and attorney fees are paid within 30 days after the date that the decree is entered in this Court and the court costs taxed, the case will be remanded to the trial court so as to ascertain the amount still due the vendors of the property and to perfect and enforce a lien against the equity in the Lexington property. The payment of such costs, including attorney fee and costs in the trial court, shall be paid in such instalments as the trial court shall determine. The final order of the trial court shall provide for the immediate foreclosure of the lien in case of the nonpayment of any instalment. The lien shall be in addition to any other legal method of enforcing the payment of the costs and attorney fee.
Defendant is gainfully employed by the Stephenson Land Company, the owner of the cherry orchard. At the time of the hearing his latest known annual earnings was $4,550 for 1948. We have frequently held that the remarriage and additional expense thus incurred by a divorced husband in no way excuses him from paying alimony. Obviously this is true when a married man lives with another woman and their son. The court allowed only $25 a week for the support of the 2 minor children. The sum seems wholly inadequate but in view of the fact that one of the children is married and will be 21 years of age shortly, we are not increasing the amount but order that the payment of the entire $25 a week shall be continued for the support of the other child during his minority.
The record shows that plaintiff has worked hard to support herself and the 2 minor children but that her earnings have been inadequate and she has been dependent upon help from her family and the charity of others. There has not been a breath of suspicion cast upon her conduct during her married life.
We hold that she shall be entitled to $50 a month alimony during such time as she remains unmarried, such amount being subject to modification by being either increased or decreased, as circumstances may develop. Plaintiff shall be entitled to costs of both courts and attorney fees of $750 to be paid by defendant. No costs are awarded against or in favor of either codefendant. The decree as modified in accordance with this opinion will be entered.
Dethmers, Carr, Btjshnell, Sharpe, Boyles, and Reid, JJ., concurred.
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North, C. J.
On June 30, 1948, George M. Holt
and Dorothy E. Holt, husband and wife, plaintiffs and appellants herein, entered into a written lease of a certain parcel of land located in Marshall, Michigan, for the term of 3 years, with Lawrence M. Stofflet and Patricia Stofflet, husband and wife, defendants and appellees herein. Plaintiffs were the lessees and defendants were the lessors. This lease contained the following option to purchase:
“The parties of the first part hereby give unto the parties of the second part an option to purchase the said premises for the sum of $10,000 upon the written request of the second parties made at any time within 1 month of the expiration of the said lease term. If the said seeond parties should elect to exereise this option then the first parties covenant and agree to credit one-half of all instalments made by the second parties hereunder toward the said purchase price, provided however that there be no arrears of rent due at such time.”
On tbe 28th of May, 1951,1 month and 3 days prior to the expiration of the lease, plaintiffs served upon the defendants a written notice that they were exercising their option. The pertinent portion of said notice is quoted:
“This is your written liotiee that the said lessees are exercising their option of purchase as so provided, and request that you have the deed of purchase and the abstract of title in their hands in ample time before the first day of June, 1951, in order that same may be examined.”
Defendants refused to recognize this notice as being a legally effective exercise of plaintiffs’ option. Plaintiffs brought suit for specific performance. After hearing on defendants’ motion to dismiss, an order was entered granting defendants’ motion. From that order this appeal was taken.
The first question to he considered is whether the plaintiffs’ alleged exercise of their option was legally effective to hind the defendants in a contract to convey. We are constrained to hold that it was. The time limit in the option as to when it could be exercised is ambiguous. The words “at any time within 1 month of the expiration of the said lease term,” could, standing alone, reasonably be interpreted to mean' either that the option could be exercised at any time prior to 1 month after the expiration of the lease, or at any time within the period of 1 month before and 1 month after, or at any time prior to 1 month before the expiration of the lease. We conclude that the latter interpretation is the most reasonable. To hold otherwise would deprive plaintiffs of the option which both parties intended plaintiffs should have, and which plaintiffs have diligently and in good faith sought to exercise.
'“An option to purchase, being inserted in the lease for the benefit of the tenant, must be construed with that purpose in view.” 51 CJS, p 638 (citing Barnhart v. Stern, 182 Wis 197 [196 NW 245]).
The trial judge held that the exercise of option was ineffectual because plaintiffs had not accepted it according to its terms, in that they demanded an abstract of title when the option itself did not call for one.- We do not so construe plaintiffs’ acceptance. Rather, we construe plaintiffs’ statement “and re-, quest that you have the deed of purchase and the abstract of title in their hands in ample time before the first day of June, 1951,” as a mere request, which defendants were free to grant or refuse.
Defendants also contend, and the trial judge so held, that plaintiffs’ exercise of option was not legally effective because no effective tender was made at the time notice of exercise of option was given. With this we cannot agree. The option itself was silent on the question of when tender of the purchase price should be made. On May 29, 1951, plaintiffs placed in escrow with, the Michigan National Bank, of Marshall, Michigan, an amount claimed to be dne as the full purchase price under plaintiffs’ option to purchase; and sent a registered letter to defendants notifying them of such fact. In this letter plaintiffs stated that they had agreed with the Michigan National Bank that they would assume the mortgage on the property, to which the bank had agreed. Defendants refused to accept this registered letter, so they had no way of knowing whether the amount deposited in escrow was the correct amount due or not. Defendants’ refusal to so accept the registered-letter makes it appear that they were intent on refusing to acknowledge a tender, even if it were in the proper amount. Under the circumstances we cannot say that plaintiffs failed to make a proper tender, and thereby lost their right to take up the option. Since this is an equity case and plaintiffs have shown that they were and are ready to pay -the proper amount of the purchase price, they are entitled to a deed upon paying into court the correct purchase price to be determined by the trial, court.
Defendants are not .entitled to $92 for the last month’s rent, because at the time the option was exercised- on May 28,-1951, the relation of landlord and tenant ceased and the obligation to pay rent with it. See 51 CJS, p 610.
The decretal order of the trial court is reversed and a decree will be entered in this Court remanding the case to the trial court with instructions to proceed in accordance with this opinion. Costs of both courts to appellants.
Dethmers, Btjtzel; Carr, Btjshnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Bushnell, J.
Charles F. Mason, now deceased, suffered a compensable injury in 1934, while in the employ of defendant Michigan Trading Corporation, and was paid compensation at the rate of $10 per week for one week. Claiming a subsequent loss of industrial vision arising out of the injury, he filed a 'petition for further compensation on May 31, 1939, and was awarded $10 per week for total disability from March 15,1936, until further order. On review, the department entered an order on May 13, 1940, modifying this award by allowing $10 a week from August 15,1935, for 100 weeks, for the specific loss of a left eye and, after the expiration of the 100 weeks, compensation for total disability at the rate of $10 a week until further order. The department found that Mason had lost the sight of his second eye in November, 1936, which rendered him totally blind. No appeal was taken from this order.
Mason died on May 11, 1942, and his widow, Eva Mason, the plaintiff herein, filed the claim now in question. She was awarded medical fees of $284.55 for the reasonable expenses of decedent’s last illness, and in addition funeral expenses of $200.
We allowed appeal to determine defendant’s contention that the award should be vacated on the ground that it should have been limited to sickness and burial expenses not to exceed $200 and then only if incurred within not more than 300 weeks following the accident.
At the time of the accident the statutes (2 Comp. Laws 1929, § 8420 [Stat. Ann. § 17.154], and § 8424, read respectively:
“Sec. 4. During the first ninety days after the injury the employer shall furnish, or cause to be furnished, reasonable medical, surgical and hospital services and medicines when they are needed.”
" Sec. 8. If death results from the injury the employer shall pay, or cause to be paid as hereinafter provided, in addition to the indemnity paid to dependents, the reasonable expense of his last sickness and burying, which shall not exceed two hundred dollars, in addition to any sum the employer may be required to pay under the provisions of section four of part two of this act. ’ ’
Section 8420 has not since been amended.
At the time of Mason’s death, May 11, 1942, that portion of section 8424, as amended by Act No. 130, Pub. Acts 1935 (Comp. Laws Supp. 1940, § 8424, Stat. Ann. § 17.158), applicable to the facts in the instant case read:
“If death results from the injury the employer shall pay, or cause to be paid as hereinafter provided, in addition to the indemnity paid to dependents, the reasonable expense of his last sickness and burying. The cost of burying shall not exceed two hundred dollars, in addition to any sum the employer may be required to pay under the provisions of section four of part two of this act.”
It should be noted that section 8424 neither before nor after its amendment contained any limitation of time for the payment of expenses of the employee’s last sickness and burying.
No claim has been made for compensation to Mason’s dependents as such and the 300-week rule discussed in Wolanin v. Chrysler Corp., 304 Mich. 164, is not involved.
The controlling question is whether the law as it existed at the time of the injury in 1934 or the law as it existed at the time of the death in 1942 should he applied. The former limited the reasonable expenses to a total award of $200 and the later limited only the amount allowed for burying, both, however, to be in addition to the expense incurred during the first 90 days after the injury.
Plaintiff’s original and independent claim for death benefits could not exist until her husband’s death. 2 Comp. Laws 1929, § 8423 (Stat. Ann. § 17.157), Wolanin v. Chrysler Corp., 304 Mich. 164, and authorities cited therein. Her right of action did not accrue until 1942, and the statute as it existed at the time of Mason’s death, when this right of action accrued, controls.
The court said in Donoho v. Atlantic Basin Iron Works, 210 App. Div. 535 (206 N. Y. Supp. 494) (see 82 A. L. R. 1248 [note]):
“Although funeral benefits are included in the term‘compensation’ * * * they are death benefits. * * * The right to them does not exist till the death of the injured employee, on which event the right springs into existence as an original independent right. Solomone v. Degnon Contracting Co. (1920), 194 App. Div. 50 (184 N. Y. Supp. 735). * * * Not until the death of the injured employee did the rights of the parties become fixed. The law which must control the compensation to be paid is that which was in effect at the time the right to the compensation springs into existence.”
The award is affirmed, with costs to appellee.
North, C. J., and Starr, Wiest, Butzel, Sharpe, Boyles, and Reid, J J., concurred. | [
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Moore, J.
Alvin R. Morrison was a building contractor. On April 22,1922, he borrowed $500 of the plaintiff for which he gave his note and a writing reading as follows:
“Grand Haven, Mich., April 22, 1922.
“Board of Education,
“Grand Haven, Michigan.
“Dear Sirs: For valuable consideration I hereby authorize you to pay the People’s Savings Bank, of Grand Haven, Michigan, $500.00 and apply it on account due me.
“Signed this 22d day of April, 1922.
“Alvin R. Morrison.”
May 24, 1922, this paper was sent to the board of education with the request that it be accepted. The superintendent of schools notified the cashier of the bank by telephone that the paper had been received and placed on file. October 16, 1922, Mr. Morrison sued the board of education, and Mr. Osterhous, an attorney, was given charge of this litigation on the part of the board of education. Subsequent to the sending of the writing to the board of education the cashier of the bank took the matter of its acceptance up with the board, who referred him to their attorney. The attorney for the board wrote a letter reading:
“January 3, 1923.
“People’s Savings Bank,
“City.
(Attention Mr. Hoffman.)
“Dear Sir: For the purpose of protecting you, if possible, and so far as possible, in your claim against Alvin R. Morrison for the amount of which he gave you an order upon the board of education, you are advised that the board in its plea and notice of defense in the case commenced against it in the Ottawa county circuit court by Mr. Morrison, claims as a set-off to the defendants of the plaintiff, and by way of credit upon those demands, that:
“ ‘The plaintiff did, on April 22, 1922, assign the sum of $500 to the People’s Savings Bank of Grand Haven, Michigan, with a written authorization to the defendant to pay the same to said bank and apply the same on the amount due from defendant to the plaintiff, which assignment and authorization was delivered to the defendant and filed and accepted by it.’
“If this $500.00 is allowed by the court as a credit to the defendant upon the claims of the plaintiff, as I believe it will be, the board will immediately make payment of the account to you.
“Yours very truly,
“Louis H. Osterhous.”
It is said this letter satisfied the bank.
Some time in the fall of 1923 the board of education authorized the payment of $12,000 as settlement of the Morrison suit, and it was settled upon that basis, but no money was paid to the bank, and this suit was brought. The trial judge was of the opinion as the defendant had not given a written acceptance of the paper, and had not authorized anybody else to do so, that plaintiff could not recover, and directed a verdict of no cause of action. The case is in this court by writ of error, and we are favored with three briefs on the part of the plaintiff, and two on the part of the defendant.
The plaintiff submits the following propositions:
“First: The instrument in question is not a bill of exchange and does not require a written acceptance. The negotiable instruments law does not apply to nonnegotiable papers.
“Second: If the instrument requires a written acceptance, then the letter of acceptance sent to the plaintiff by the duly authorized -agent of the defendant is sufficient to satisfy the statute. Acceptance means notification.
“Third: There was an ‘acceptance by conduct.’ The retention of the assignment accompanied by other circumstances were sufficient to establish an implied acceptance. At least, this question was one for the jury to determine.
“Fourth: The defendant is estopped to deny its liability.”
Each of these propositions is argued at length with a citation of many authorities. The case to us does not seem to be a very complicated one. Mr. Morrison borrowed money from the bank, and gave his note and the writing in controversy to secure its payment. He then became a debtor of the bank. The defendant at this time was a debtor of Mr. Morrison. The writing was a request from Mr. Morrison to the defendant that it pay to the bank $500 of its debt to Mr. Morrison and apply it on Mr. Morrison’s account. If the defendant did this it would extinguish $500 of its debt to Mr. Morrison, and would also pay $500 of Mr. Morrison’s debt to the bank. We think it clear from the record that defendant never agreed in writing to do this, and that the trial judge was quite right in his rulings. Finan v. Babcock, 58 Mich. 301; Pfaff v. Cummings, 67 Mich. 143; Upham v. Clute, 105 Mich. 350; Dean v. Ellis, 108 Mich. 240; Stone v. Dowling, 119 Mich. 476.
Judgment is affirmed, with costs to the appellee.
Bird and Sharpe, JJ., concurred with Moore, J. | [
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McDonald, C. J.
The purpose of this action is to recover a balance due for salary which the plaintiff claims amounts to $3,700. The material facts constituting the plaintiff’s case are well stated in his counsel’s brief as follows:
“The testimony stands undisputed that George May- hew was a high-salaried man in the automobile body building industry and that he had had charge of several plants in the production of automobile bodies. Walter O. Briggs, as president of the Briggs Manufacturing Company, which was engaged in the manufacture of automobile bodies, employed George Mayhew to be exclusively in charge of the Harper and Elliott avenue plants of the Briggs Manufacturing Company, and he was authorized to employ such men at such rates as would seem right and proper to him. * * *
“The claim of the plaintiff is that he was employed by the Briggs Manufacturing Company, the defendant, through its duly authorized agent, George May-hew, to work for a period of one year commencing with June 1, 1922, and ending with May 31, 1923, as assistant production manager in charge of the frame and metal department for the sum of $7,500 for the year, and that he was to receive a drawing account of $300 per month (which was afterwards raised to $350) and the balance of the salary at the end of the year. Mr. Booth accepted the terms of this agreement and reported for work on the 1st day of June, 1922, at which time he met Mr. Briggs, president of the defendant company, and at which time Mr. Briggs confirmed the agreement made with the Briggs Manufacturing Company through Mr. Mayhew. * * *
“Before the year was up, Mr. Mayhew severed his connection with the Briggs Manufacturing Company because he was unwilling to continue with them for longer than his contract of employment due to the condition of his health. Mr. Mayhew sought to see Mr. Briggs in person and remind him of the situation in reference to men like the plaintiff and the sums of money due them upon the expiration of the year. While Mr. Briggs promised Mr. Mayhew an interview to take care of these matters, Mr. Mayhew was never given a chance to see Mr. Briggs, with the result that at the expiration of the year when the plaintiff demanded the balance of his salary in compliance with the terms of the contract of employment, he was requested to wait upon Mr. Pague, the successor to Mr. Mayhew. Mr. Booth, upon receiving payment of his last drawing account, served notice upon the Briggs Manufacturing Company that he claimed the balance of his salary besides the drawing account.
“Mr. Mayhew, in explaining the manner in which payments of salaries were made to employees of official position whom he hired himself, said that in fixing the salary with employees of official capacity he always had followed the policy of giving a drawing account as part of the salary and keeping the rest to be paid upon the expiration of the year. He stated that he found this to be very efficient in encouraging men to remain with him for the entire period of employment so that they would not be tempted to léave sooner and go to work for others.
“Walter O. Briggs asked Mr. Mayhew to keep secret from the old employees of the defendant company the actual amounts to be paid the men whom Mr. May-hew was bringing over to work for him in the employ of the Briggs Manufacturing Company, the reason being that dissatisfaction would be created by the old men knowing that the newcomers were to receive a higher salary.”
It is the defendant’s claim that plaintiff’s salary was fully paid in accordance with certain rate slips filed by Mr. Mayhew with its treasurer, and that it is not now indebted to the plaintiff in any sum whatever. Upon the close of the proofs the court directed a verdict for the plaintiff in the sum of $3,803.55. Judgment was entered on the verdict and the defendant brings error.
The only question involved is the action of the court in directing a verdict for the plaintiff. It was the opinion of the circuit judge that the essential facts of the plaintiff’s case were undisputed. The defendant insists that the court was in error; that there were in evidence certain so-called rate slips and checks which were contradictory of the plaintiff’s claims, and which furnished sufficient evidence to take the question in issue to the jury. These rate slips were in the following form:
To The Timekeeper June 1 1922
Change Rate of
Name V. Booth
Dept. Frame Position Superintendent
300.00 per mo. From-Per Hour to
G. Mayhew
Approved
Harper Plant.”
Of this rate slip Mr. Mayhew testifies on cross-examination :
“Q. That is the written information that you gave to the assistant treasurer of the company as to what Mr. Booth was to receive isn’t it?
“A. Per month, yes, that was the drawing allowance that was understood by Mr. Briggs.”
This slip was made out on the regular printed form used in the factory and was required to be filed with the treasurer so that he might be able to fix the amount in the pay checks. These cheeks were also the regular form checks used in the factory and all of them contained a payment in full statement.
The plaintiff received his pay semi-monthly with the checks of this kind. He knew what they contained. But the undisputed testimony is that they were made to show his drawing allowance and not his actual salary, and that this was done by agreement with Mr. Briggs and at his request, so that other officials and employees should not know the real salary of the men employed by Mr. Mayhew. That is the testimony of Mr. Mayhew, and no one contradicts him. The only other man having knowledge of these facts was Mr. Briggs, and he did not see fit to offer himself as a witness. On the question as to whether rate slips and checks were evidence requiring the court to submit the case to the jury, the controlling fact is that they are not inconsistent with the plaintiff’s claim or contradictory of it, because by evidence that is undisputed they do not show the actual salary that the plaintiff was entitled to under the agreement by which he was employed. Mr. Mayhew was a disinterested witness. He was in no way discredited or impeached. His testimony throughout was not contradicted by any circumstance, inconsistency or improbability, or by the oral testimony of other witnesses. It covered every essential element of the plaintiff’s case and the court would not have been justified in permitting the jury to disregard it. He was right in directing the verdict.
The judgment is affirmed, with costs to the plaintiff.
Clark, Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Bird, J.
Plaintiffs were the owners of nearly all of the capital stock of the White River Power & Light Company, a corporation, doing business in Muskegon county. Defendant was a stockholder, member board of directors, secretary, treasurer and general manager of the company. The company was not in a very prosperous condition and defendant Pitkin secured a 90-day option from the other stockholders agreeing to sell to him their shares of stock at the price of par. Subsequently he exercised his option, purchased the stock and sold the same to the Commonwealth Power Company for $22,400 more than the par value of the stock, and claimed he was entitled to this excess for making the sale. The plaintiffs insist the defendant was acting as their agent in making the sale and, therefore, they are entitled to their respective shares of the excess. These conflicting claims furnished the issue in the trial court. The case was heard by his honor, Judge Hawley, and he filed an opinion, with which we are in accord and, therefore, adopt it as the opinion of this court:
“Most of the facts in this case are conceded. It appears without dispute that for many years prior to 1917 there had existed a corporation known as the Frugale Power Company and a copartnership, composed of John O. Reed, Albert T. Speese, doing business under the name of Reed & Speese; both said corporation and said copartnership were owners of and were engaged in developing flowage rights and privileges’ and water power on White river in said county and elsewhere, and in the production, distribution and sale of electric light and current.
“In the year 1917 these two companies were merged or consolidated into a new corporation organized for that purpose and known as the White River Power & Light Company, and their property and franchises were duly transferred to the new company. The authorized capital stock of the new company was in the sum of sixty-four thousand ($64,000) dollars, all of which was common stock. However, only fifty-six thousand ($56,000) dollars worth of said stock, consisting of fifty-six hundred (5,600) shares, of the par valúe of ten ($10) dollars per share, was actually issued and sold. Of this stock so issued, John O. Reed, in the month of July, 1922, owned the amount of 2,025 shares and defendant Pitkin at the same time owned 237% shares. The balance of said stock so issued was owned by other individual stockholders.
“In the year 1917 the defendant first became interested in the company and for the first time became an investor and stockholder therein.
“On August 16, 1917, he was elected secretary-treasurer of the company and later, and in the year 1919, he was elected general manager thereof. He continued to act as secretary-treasurer and general manager of the company from that time to and until the sale of the entire capital stock of said company to the Commonwealth Power Company was consummated. This was done on or about October 15, 1922.
“The company did not pay any dividends from the time of its organization, and what profit it had realized from the business had been expended in improving the defendant’s property. In July, 1922, the book value of the stock actually issued therein was approximately one hundred forty ($140) dollars per share. * * *
“The Stearns Electric Light & Power Company of Ludington, Michigan, in and prior to the year 1922 was engaged in a business similar to that of the White river company and was in need of the power and property rights of the latter company. Mr. Walsh was at that time the manager of the Stearns company, which was a subsidiary of the Commonwealth Power Company. As early as the fore part of June, 1922, Mr. Walsh visited the offices of the White River Power Company at Muskegon, Michigan, and there had an interview of considerable length with the defendant; he tried to ascertain from the defendant if the company’s property was for sale, but received no particular information in that respect from the defendant. He was informed by the defendant that the book value of the stock of the company was one hundred forty ($140) dollars per share. There is no testimony tending to show that defendant ever reported that visit and interview to any of the officers or stockholders of the White river company.
“In and perhaps prior to the month of June, 1922, the defendant began to make inquiries of individual stockholders to ascertain if they were desirous of selling their stock and to urge the desirability of making a sale of the company property, and to emphasize and accentuate the perils of the business and the necessity of either selling the property or raising and expending more money.
“It is apparent from the testimony that the defend ant took the initiative in urging the desirability of a sale. Finally the defendant called a meeting of the board of directors of the company to be held and which was held on July 11, 1922. All the directors were present, except a possible one. At that meeting he brought up the question of raising more money for the development of the plant and to make further improvements. After considerable discussion it was agreed that all the stockholders should execute and deliver to the defendant options on their several holdings of said stock in order to enable him to find a purchaser and make sale of the same at the best price obtainable and not less than par.
“Later, options were executed to the defendant by each of the several stockholders. These options were substantially in the same form, except the option of Frank H. Speese, and the form is as follows:
“ ‘Option To Purchase.
“ ‘Whitehall, Michigan, July 15, 1922.
“‘For the sum of one dollar to me in hand paid by C. G-. Pitkin, I hereby give to said C. G-. Pitkin an option to purchase all of the stock or stocks of the White River Power & Light Co., Inc., of Whitehall, Michigan, now issued to me and standing in my name, or any and all stock which may hereafter be issued to me during the term of this option, at a price of par value, i. e. ($10 per share), and without interest. This option to expire ninety days from the date hereof.
“ ‘It is further agreed and understood, that in case of sale and transfer of said stock or stocks, that at the time of delivery, transfer and payment hereof, I will sign and deliver to said C. G-. Pitkin, his successors or assigns, a quitclaim agreement, as to any debt, obligation or claim whatsoever against the Frugale Power Company, Reed & Speese and the White River Power & Light Company.
Witness:...............................’
“Subsequently the defendant succeeded in selling the entire capital stock of said company to the Commonwealth Power Company for the sum of seventy-eight thousand, four hundred ($78,400) dollars. During all of the period that elapsed from the time that said sale was consummated, he represented and pretended to the stockholders that he was only receiving the sum of fifty-six thousand ($56,000) dollars for said stock, and that he was receiving no compensation for making such sale, except the usual commission allowed' by the purchaser on sales of that character. Certain of these options were obtained upon the strength of the statements, representations and agreements made at that meeting and again later reiterated by said defendant, and the remainder was obtained from stockholders who were not present at said meeting, but to whom like statements, representations and agreements were made by said defendant.
“The only dispute in the case relates to what was the actual agreement and understanding between the defendant and the several stockholders at the time that he obtained the options from each. The testimony of each and every stockholder in the case, except that of defendant, tends to show that it was agreed and understood by and between defendant and the said several stockholders that he would obtain a purchaser for said stock and make a sale thereof at the highest price obtainable therefor and not less than par for the benefit of the several stockholders, and that the proceeds of such sale should be divided between the stockholders in proportion to the amount of stock held by each, and that he desired the several options for the purpose of enabling him to consummate such sale, and that they were to be used for that purpose only. On the other hand, the testimony of the defendant is in substance that he was to make sale of such stock at not less than par and that after paying the several stockholders the par value of their stock he was to retain the balance of the purchase price of said stock for his own use and benefit and as his own property. In other words, under the testimony of the several stockholders, except the defendant, the defendant was to act as .the agent and trustee of the stockholder in procuring such purchaser and in making such sale, and the options were executed to clothe him with full power as such agent and trustee to make such sale and to receive the purchase price thereof; on the other hand, according to the claim of the defendant, he was not acting as agent and trustee for the plaintiffs but was making such sale in his own behalf and was only obligated upon making the same to account for and pay over to each of said stockholders the par value of his individual holdings of stock.
“I am convinced that the agreement and understanding at and before the time that each of the several stockholders executed their options was in substance that the said defendant was to act as the agent and trustee of the several stockholders in making such sale, and that said sale was to be made at the best price obtainable and not less than par, and that the proceeds of such sale were to be divided between the several stockholders in proportion to their several holdings of stock.
“I am also convinced that it was not agreed with or understood by the stockholders that defendant was obtaining a sale of this stock for his own benefit or profit, or that he was to have all that he could obtain on such sale over and above the par value of the stock. The overwhelming weight of the testimony tends to establish the claims of the plaintiffs and to refute those of the defendant. The conduct and statements of the defendant during the negotiations and even subsequent to the sale also tend to contradict his present claim. Concealment, evasion and even falsehood were resorted to by him to deceive the stockholders as to the actual consideration of the sale and the real source and amount of his compensation for consummating the same. Conscious integrity resorts to no such expedients. If he was conscious of the fact that he had no right to appropriate to himself this large sum of money and yet was dishonestly intent on so doing, his conduct would have been in that respect just what it was. On the other hand, if it had been fairly understood that he was to have what he could get above the par value of the stock, there would have been no occasion on his part for resorting to devious methods to conceal either the source .or amount of such profit. Only one conclusion can be drawn either from the testimony relating to the arrangements between the defendant and the stockholders or from the acts and conduct of the defendant himself, and that is that in negotiating and consummating the sale in question, defendant was acting as agent and trustee and for the benefit of the stockholders, and that throughout those transactions he was conscious of the fact that such was the case.
“As agent and trustee it was his legal duty to act towards the other stockholders in entire good faith and he was bound to disclose to them all facts within his knowledge which were or might have been material to them, or which might influence them in their action. Hogle v. Meyering, 161 Mich. 472, 485; Michigan Crown Fender Co. v. Welch, 211 Mich. 148, 159, 160 (13 A. L. R. 896); Wilson v. White, 223 Mich. 497-503.
“It was also the duty of the defendant to fully and faithfully account to the stockholders for the entire proceeds of such sale. In each of these respects he has not conformed to his duty. Accordingly he will be required to account to each plaintiff for the proportionate share of each in the entire proceeds of said sale, to-wit: Seventy-eight thousand, four hundred ($78,400) dollars. On such accounting he will be credited with the amount already paid to each stockholder appearing as plaintiff herein. He will also be credited with the expense of his trip to New York City, one hundred forty-eight ($148) dollars, and his trip to Grand Rapids, fifteen ($15) dollars. Mr. Reed, however, will be required to reimburse the stockholders for the amount of the so-called rebate, seven hundred ($700) dollars. It is my opinion that the Speese judgment which was owned in part by Mr. Reed and in part by Mr. Speese was a proper charge against the company, and that each was entitled' to reimbursement thereon; but I am not of the opinion that Mr. Reed was entitled to the so-called rebate nor that the corporation was in anywise obligated to pay him the amount thereof. The securities, now held by the defendant and purchased with the proceeds- of the sale of the stock of said White River Power & Light Company will be determined to constitute a trust fund for the benefit of the plaintiffs. Plaintiffs are entitled also to interest at the legal rate upon the amounts found to be due them respectively and will recover costs of this suit to be taxed.”
In addition to the authorities cited in the opinion bearing on the duties of an official of a corporation toward a stockholder see Bollstrom v. Duplex Power Car Co., 208 Mich. 15; Buckley v. Buckley, 230 Mich. 504; Mulvane v. O’Brien, 58 Kan. 463 (49 Pac. 607).
The decree of the trial court will be affirmed, with costs to the plaintiffs.
McDonald, C. J., and Clark, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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McDonald, C. J.
Plaintiff brings error to review the judgment of the circuit judge in quashing certain writs of garnishment. The plaintiff began suit by attachment against William J. Jackson on the 22d day of November, 1923, and on the same day the sheriff attached a Studebaker sedan, belonging to the defendant, and stored it with William K. Johnson, who was doing business as Olympic Wrecked Auto Service. On January 28, 1924, the attachment was dissolved by order of the circuit judge and the sheriff was directed to restore the attached property to the defendant “after the expiration of five days from the date hereof.” On the 26th of January, 1924, the plaintiff filed an affidavit for a writ of garnishment and the writ was issued and served upon William K. Johnson, in whose garage the automobile was stored. Thereafter on February 2, 1924, a second writ of garnishment was issued and served on Mr. Johnson. On the 4th day of February, 1924, a third writ of garnishment was issued and served. The garnishee defendant filed a disclosure stating that he had no money, goods, chattels, property, credits or effects in his hands belonging to the principal defendant, but that, as custodian of the sheriff of Wayne county, he held an automobile which he understood belonged to the principal defendant. The plaintiff demanded a jury trial of the issue raised by the disclosure. The principal defendant moved to quash the writs of garnishment. The motion states that it is based upon the files and records and upon certain affidavits. On hearing the motion the circuit judge entered an order quashing the writs. The plaintiff brings error.
It is the plaintiff’s contention that, except for defects apparent on the face of the proceedings which go to the jurisdiction of the court, there is no authority for quashing writs of garnishment on motion, and that it was entitled to have the issue between it and the garnishee defendant tried out according to the garnishment statute. There were three writs of garnishment issued. The first was that of January 26, 1924. It did not comply with the statute and the plaintiff concedes it should have been quashed. The two later writs complied in all respects with the statute. There is no apparent defect on the face of the proceedings and the issue raised in regard to them was determined from affidavits filed in support of the motion to quash and the counter affidavit of the plaintiff. The issue here involved cannot be determined by affidavits. Jewell v. Lamoreaux, 30 Mich. 155; Starr v. Whitcomb, 150 Mich. 491; Borderland Coal Sales Co. v. Wayne Circuit Judge, 228 Mich. 198.
The judicature act (3 Comp. Laws 1915, § 12456) authorized motions to dismiss as a substitute for demurrers, pleas to the jurisdiction and in abatement. Issues of fact could not be disposed of on demurrer. They cannot be disposed of on motion to dismiss. Gunn v. Gunn, 205 Mich. 198; Pagenkoff v. Insurance Co., 197 Mich. 166; Vyse v. Richards, 208 Mich. 383.
It is urged by the defendant that the case is not properly before this court for review; that writs of error may be issued only on final judgments; and that the plaintiff should have applied for a writ of cer-tiorari. The order in question makes a final disposition of the garnishment proceedings. It is in effect a final judgment and may be reviewed on writ of error. Recor v. St. Clair Circuit Judge, 139 Mich. 156. The circuit judge erred in quashing the writs. The issue is one which the plaintiff is entitled to have tried in accordance with the proceedings prescribed by the garnishment statute.
The order is reversed, with costs to the plaintiff.
Clark, Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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WlEST, J.
Plaintiff filed a bill to enjoin a sale under chattel mortgage, given by himself and defendant Reuben Graff to defendant Davis Graff, and obtained a temporary injunction, upon giving a bond for $10,000 with two sureties thereon. At the hearing plaintiff’s bill was dismissed and, upon the answer of defendant Davis Graff, asking for affirmative relief, sale was decreed under the mortgage for an amount found due and in case of deficiency Davis Graff was granted leave to apply to the court for execution against plaintiff, and William Elson and Aleck Elson, sureties on the injunction bond, as their liabilities might appear and be determined. It being the intention of the decree that the liability of the plaintiff and Reuben Graff for deficiency, if any, and the liability of the plaintiff, and the sureties on the injunction bond, be left undetermined for the time being. Plaintiff held possession of the mortgaged chattels under the temporary injunction and also as receiver in another case in the same court brought by Reuben Graff against him. Sale was made, deficiency reported and no appeal taken. Some months later defendant Davis Graff petitioned the court to settle the amount of the deficiency due from the plaintiff “and to fix the liability of the said plaintiff and the liability of the sureties on the plaintiff’s injunction bond for the amount of the deficiency that may be found due, according to the decree of this court.” No notice of this petition was given the sureties on the injunction bond. The petition was dismissed, the court holding that the liability of plaintiff and the sureties on the injunction bond for deficiency and damages, if any, should be determined in an action at law on the bond. From! Nds order Davis Graff appealed. Counsel for Davis Graff admitted on the argument that the circuit judge was right in denying relief against the sureties, but insists there was error in dismissing the petition as to plaintiff. The injunction bond provided:
“That if the above bounden Meyer Epstein shall well and truly without fraud or delay pay or cause to be paid to the defendant Davis Graff or his legal representative any judgment or decree and all damages that may be awarded to Davis Graff against said plaintiff, Meyer Epstein, by reason of the pendency of said injunction, then this obligation shall cease and be null and void, otherwise to remain in full force and effect.”
The record does not contain the testimony, if any, taken upon the hearing of the petition. The sureties on the injunction bond have had no notice of the application to hold them liable and to determine the amount of their liability and therefore have not had their day in court. No statute requires such a bond' and, therefore, the remedy is by action upon the bond. The decree in the case determined the amount due under the mortgage. The report of sale made by the sheriff together with the costs thereof and the cost taxed in the case determined the amount of the deficiency. To recover deficiency and damages, if any, occasioned by the injunction Davis Graff may sue on the bond but cannot have the same assessed against the sureties on the foot of the decree. The mortgage indebtedness was that of plaintiff and defendant Eeuben Graff. Plaintiff is not alone liable for the deficiency. If suit is brought to recover the deficiency, all parties liable therefor should be brought in.
The order appealed from is affirmed, with costs to plaintiff.
McDonald, C. J., and Clark, Sharpe, Moore, Steere, and Fellows, JJ., concurred. Bird, J., did not sit. | [
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Fellows, J.
On August 9, 1922, the Par-Kar Coach Company, a corporation engaged in the manufacture of coaches at St. Louis, Michigan, executed and delivered to plaintiff the following instrument:
Bill of Sale.
“For, and in consideration of $10,000 cash and other valuable considerations, the receipt of which are here by acknowledged, we, the Par-Kar Coach Company of St. Louis, Michigan, do grant, sell, bargain and convey to the Guarantee Bond and Mortgage Company of Grand Rapids, Michigan, its successors and assigns, six model B parlor car coaches described as follows: These coaches to be equipped with Model E. B. U. Buda motors, four speed Fuller transmissions, Vulcan full floating rear axle and Vulcan front axle, with 36x6 cord tires all around, bodies painted maroon, upholstered in Spanish leather pantosote, sidewalls upholstered with the same material as the seats, carpet on the floor, and equipped with ten dome lights, fare boxes, routing signs and special speedometers, now in process of manufacture by Par-Kar Coach Company at St. Louis, Michigan.
“The delivery of this equipment is to be made in four weeks from date hereof, and the delivery is guaranteed by a delivery bond furnished by the Fidelity and Deposit Company of Maryland, Baltimore, Maryland.
“The Par-Kar Coach Company warrants that said property is free and clear from all liens and incum-brances and that it and its successors and assigns will warrant and defend the sale hereby made against all claims whatsoever.
“Par-Kar Coach Company,
(Signed) “By C. O. Westfall,
“August 9, 1922. President and Gen’l Mgr.”
Defendant became surety in the bond mentioned in this instrument and $10,000 was paid to the Par-Kar Company by plaintiff. The coaches were never delivered to plaintiff but during the fall were delivered to the Michigan Motor Transportation Company, a corporation subsequently organized by Mr. Westfall, president of the Par-Kar Coach Company, and others, and a bill of sale of them was given to the Contract Finance Company which company subsequently took possession of them. Upon the failure to make delivery on the date specified in the instrument, defendant’s agent was promptly notified. The testimony fairly discloses that at this time the coaches were not finished and ready for delivery; at a somewhat later date, plaintiff learned that the coaches had been delivered to the transportation company. After considerable negotiation, which was fruitless, this action was brought to recover the penalty of the bond. Upon a trial before the court without a jury findings of fact and conclusions of law were filed and judgment entered for plaintiff;
Upon the trial the facts above related were clearly established and were substantially incorporated in the findings of fact. It is here insisted that defendant should escape liability because the instrument quoted is not a bill of sale but is a chattel mortgage and many pages are taken in the brief with argument and citation of authorities to demonstrate that the instrument is under the circumstances a chattel mortgage. We may hold for the purposes of the case that the instrument is a chattel mortgage without in any way affecting the case or the judgment rendered. If it is a chattel mortgage, the Par-Kar Coach Company is the mortgagor; it executed the instrument and the money was paid by plaintiff to it; by no stretch of the facts can it be held to be the mortgage of the transportation company which was not then in existence; by its express terms the Par-Kar Coach Company agreed that possession of the property should be given the plaintiff. If the instrument is' for security the very essence of the security according to its terms was the possession of the mortgaged property by the plaintiff as mortgagee. This possession the mortgagor agreed to give, and defendant became surety for the performance of the agreement. The mortgagor breached its agreement and defendant, its surety, is liable.
There is some discussion in the brief of defendant’s counsel as to the point at which delivery should be made in the absence of specific agreement. But upon this record this question is academic. Here the Par-Kar Coach Company made an actual delivery of the coaches covered by the instrument, whether it be a bill of sale or a chattel mortgage, not to the plaintiff but to the transportation company, a stranger to the instrument. The defense in this case is without merit.
The judgment will be affirmed.
Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred. McDonald, C. J., and Wiest, J., did not sit. | [
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Fellows, J.
The street proposed to be opened in these proceedings crosses lands owned by Detroit Lumber Company; it also crosses the right of way of the Detroit Terminal Railroad upon which is located a side track owned by the lumber company. The parties agreed upon the value of the land of the lumber company taken for the street and the jury awarded the sum agreed upon. The amount of the cost of construction and maintenance of the crossing of the track of the terminal company was also agreed upon, and this sum was likewise allowed by the jury. The amount of the cost of construction and maintenance of the crossing of the sidetrack owned by the lumber company was also agreed upon but the jury disallowed any sum for this element either to the lumber company or to the terminal company, although instructed by the trial judge to make an allowance. The lumber company here reviews the disallowance of this one item.
We need not consider the statutory or municipal regulations having reference to highway and street crossings as both parties agree that the work of constructing and maintaining such crossing must be done by either the terminal company or the lumber com pany. We think under the contract between these companies such expense falls on the lumber company. No statutory or charter provision is called to our attention for reimbursement of this expense by the city. Unless an award is here made such expense' must be borne by the lumber company. The lumber company insists that unless it is now compensated for such expense its property will be taken without just compensation. Under the holdings of this court, if the terminal company had been the owner of this track and had been the only defendant, it would have been entitled to compensation for the imposition upon it of the expense of construction and maintenance of the crossing. In City of Grand Rapids v. Railroad Co., 58 Mich. 641, it was said by Chief Justice Campbell, speaking for the court:
“The damage done to a railroad by having a highway run across it must necessarily include all the additional expense entailed by such a crossing, which in a city may involve a considerable outlay in making the crossing safe, and providing guards against accident. Under the Constitution there must be just compensation, and this cannot be denied by law or by verdict.”
See, also, Chicago, etc., R. Co. v. Hough, 61 Mich. 507; City of Grand Rapids v. Railroad Co., 66 Mich. 42; Commissioners of Parks & Boulevards v. Railroad Co., 90 Mich. 385; Village of Plymouth v. Railroad Co., 139 Mich. 347.
That which is just compensation to a utility corporation is just compensation to a commercial corporation similarly situated. If the public utility is entitled to compensation for the cost of construction and maintenance of the crossing, then a commercial corporation upon whom is cast the burden of construction and maintenance of the crossing is likewise entitled to compensation. It was said by Chief Justice Geaves in People v. Railway Co., 52 Mich. 277:
“The saeredness of property does not depend on whether the proprietor is a natural person or an artificial person. Nor does it depend on whether the property itself consists of land, or shops, or warehouses, or railroads, or cars, or corporate stock. Whether property interests are in farms, or in buildings, or in cheese factory associations, or in other corporate industries, or in some other lawful form, the fundamental rights of ownership are exactly the same.”
But it is said the contract between the lumber company and the terminal company permitted its cancellation upon notice and that this rendered the lumber company’s damages too speculative to justify an award. The lumber company operates an extensive lumber yard; the siding was put in and the portion here involved paid for by the lumber company to facilitate its business; it is advantageous to both the terminal company and the lumber company and other portions of it will eventually be paid for by the terminal company. It is true that the time may come when the lumber company may no longer have use for this side track, it may be abandoned by it, or the terminal company may cease to function, or the lumber company may go out of business. Any one or all of these things may happen at some time in the future. But this does not make the defendant’s damages so speculative and conjectural as to deprive it of the right to them or to justify the public in taking its property without just compensation.
The judgment will be set aside and the case remanded for another inquest. Defendant will have costs of this court.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Steere, and Wiest, JJ., concurred. | [
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Steere, J.
Plaintiff filed this bill in the circuit court of Cass county, in chancery, to set aside a deed, dated November 20, 1922, purporting to have been given by her father, William H. McCoy, to her brother, John W. McCoy, defendant herein, and recorded in the office of the register of deeds of Cass county on November 22, 1922. On its face it is a properly executed deed, signed by said William H. McCoy, duly witnessed and acknowledged, conveying to defendant an 80-acre farm in Pokagon township, Cass county. As originally alleged in plaintiff’s bill, filed December 2, 1922, the grounds of invalidity charged against said deed were mental incompetency and undue influence. Defendant pleaded issuably, by answer filed December 20, 1922, in denial of those allegations. The suit was brought to hearing on October 2, 1923. Testimony was heard in open court upon those issues during that day and the following until both parties had rested, when counsel for plaintiff moved the court for an adjournment or continuance of the hearing for a week or so owing to a situation having developed rendering it necessary for plaintiff’s side to make further preparation, or investigation. This motion was objected to by the defense and the court having stated in substance that it could not be granted against objection without proper reason shown, plaintiff’s counsel said: “It is our claim that this signature on this deed is not the signature of Mr. McCoy, that he never signed his name to the deed.” After some further discussion the court continued the hearing until October 11, 1923. On that date hearing was resumed and plaintiff’s counsel was permitted to amend her bill by alleging “the deeds were never signed by decedent, William McCoy,” to which defendant’s answer was amended in denial. Further proofs by the parties were heard on that issue and the case argued and submitted. The court took the same under advisement and on December 11, 1928, filed an opinion reviewing the testimony at large and holding plaintiff had failed to establish any one of her three alleged grounds of invalidity by a preponderance of evidence, and on December 28, 1923, filed a decree dismissing her bill with costs, from which she duly appealed.
While taken as a whole this record makes clear that deceased departed this life not long after the date of the deed in question, the date of his death and his exact age at that time must, like the intent of a testator, be drawn from the four corners of the instruments and record. Turning to plaintiff’s bill for that information we find it alleged in paragraph 2 that “said William H. McCoy, at the time of his death which occurred on or about the 23d day of November, 1923, was of the age of 95 years, feeble in mind and body,” etc. Defendant’s answer in traversing said paragraph 2 of the bill says he “admits the date of the death of his said father, but denies his father was 95 years of age at his death, but says he was 93 years of age at his death.” No direct evidence was produced as to the date of his birth and we do not discover that any one of the over 30 witnesses sworn directly testified as to the day, month and year of his death, but Mr. Sever, an old gentleman who testified he had known deceased 60 or 70 years, said “he was something over 90 years old,” in the summer of 1922 he noticed he seemed to be failing and he died that fall. Others testify in detail of his last illness of short duration and death from pneumonia, on or about November 23d, without stating the year, and that he executed the deed in question, with two others, but three or four days before his death. Plaintiff, who alleged in her bill that her father’s age was 95 years when he died on November 23, 1923, testified that she was 49 years old and as near as she could “figure” her father was 96 or 97 years old when he died. The trial court stated that deceased “died at the ripe age of about 95 years.”
Deceased is shown to have been one of the pioneers of Cass county, settling there, according to tradition, when he was a child. His calling was that of a farmer and he had spent most of his life in Pokagon township, much of it on his 80-acre home farm, described in the deed to his son John in controversy here. He was twice married, his last wife’s death preceding his by about 15 years. During his long life he had made three wills, the last after the death of his second wife. He left surviving him. three children, plaintiff, Ellura B. Moore, defendant, John W. McCoy, and his youngest daughter, Edna Gwilt, all of mature years and married, Edna the youngest having a family of eight children. His early educational advantages were limited. He is described as an industrious farmer of frugal habits, rather strong will and not easily influenced. The physician who attended him in his last sickness and had known him for 10 years, described him as having “considerable will power,” with a “strong, robust and vigorous constitution for a man of his age.” It was shown that up to the time of his last brief illness he cared for himself, managed his farm and business affairs, looked after repairs, attending to ordinary and usual business matters which customarily arise in the life of a farmer. His relations with all his children were always congenial so far as shown until some time before his death plaintiff unsuccessfully instituted proceedings in the probate court to have him adjudicated mentally incompetent and a guardian appointed to manage his affairs.- Although she failed in that endeavor he was much grieved by her conduct towards him in his old age, occasionally commenting on it to others and even spoke of it to the nurse who attended him in his last illness. The testimony of apparently responsible and disinterested witnesses who did business with him in the last years of his life and of those who saw him before and at the time of his death is overwhelming to the effect that though he had grown old and his physical powers abated he retained his independence of thought, memory and mental vigor to the last. Mr. Coy W. Hendricks, a member of the Cass county bar for 41 years, who had long known deceased and formerly done some professional work for him, testified in part as follows:
“He was in my office three or four weeks before he died as I recall. I had drawn a will for Uncle Hiram, it was in my custody. He said he came to get his will. He said he thought he would make some deeds. As he left I told him I wouldn’t destroy the will until I got the thing all fixed up. He says, ‘Well, will see you again.’ And that was the last time I saw him. He made no response as to whether he intended to hold the will until he made the deeds. Before that I occasionally saw him on the streets, the last year of his life. His eyesight was rather poor and he was crippled with rheumatism and carried a cane, although he got around. I tried a case for him 30 years ago and he was an old man then. He was quite a positive man. Fairly intelligent. I would judge that he had not been to school much and was not much of an educated man. Quite a clear-headed man, quite a successful farmer.”
Mrs. Eda McUmbre, a practical nurse with years of experience, was called to attend deceased after his last illness, which began with a cold and developed into an ominous case of pneumonia. She had not previously known him. When told who she was and introduced to him deceased spoke of knowing her brothers and talked about them. She testified that he talked to her intelligently on various subjects from time to time, called her attention to some pears on the sideboard and named the party who brought them to him, and always talked rationally on whatever subject came up until the time of his death. He once asked her whether she thought he was crazy and, on her replying she did not know why she should think so, “he said his daughter (Mrs. Moore) tried to make out he was crazy and wanted a guardian appointed several years ago,” and spoke of her not coming to see him since he was sick. At another time he remarked that he had his property fixed the way he wanted it, but did not tell her how. He was perfectly able to rise from his bed without assistance and tend to the calls of nature right up to the time he died. He seemed at all times to know what he was talking about and she regarded his mental condition very good for a man of his age. Of the apparently sudden and fatal turn of his malady, she said: “I was in and talked to him just a few minutes before he began to sink. I went out of the room; when I came back I see he was sinking. He died a few minutes after that.” This witness was not called to attend him until after November 20th, and no papers were signed by him while she was there. Of his mental condition in general as observed by her, she testified: “During the time that I was there up to ten minutes before he died, I would say that he was mentally competent to transact business.”
After getting his will from the attorney with whom he had left it, deceased went with it to an old neighbor named Solon Straub whom he had named in his will as his executor, and showed it to him, told of some changes he wanted to make in the disposition of his property and consulted with him about deeding it instead of making another will. Straub replied that they sometimes broke deeds as well as wills and suggested he had better consult an attorney about it. Straub testified he had lived in Pokagon township 58 years and known deceased during all that time, meeting him frequently and that they always talked when they met, their ]ast conversation about his will being in the fall not long before deceased’s death, and said:
“He talked his business matters over with me some that day and seemed to be very clear in the matter. * * * I thought his mental condition was good, he seemed perfectly clear on business matters.”
During the last few years of his life deceased lived a part of the time with his son, John, whose wife was the daughter of an old neighbor named Daniel Byrnes, who had lived all his life in Pokagon township and had been a justice of the peace for 47 continuous years. He made his home with John and his wife on a farm occupied by them in which he had a life interest. Byrnes drafted the deed involved here and other papers executed at the same time. During the summer before his death deceased lived alone on his farm doing his own housework and boarding himself part of the time, and part of the time taking his meals at the home of his brother who lived near by. He kept a horse and buggy which he drove to town and elsewhere as business or inclination suggested. That fall he went to live with his son, John. The household consisting of John and his wife, their son and the two old gentlemen. Near the middle of November deceased contracted a cold which increased in severity, until, on November 21st, a physician was called who found pneumonia had developed and one lung was partly consolidated. The doctor visited him but twice, the second time on Thursday, November 23d, when he said he found him “in a poor condition and I was convinced it was his last illness.” He did not visit him again as he learned he died that night or early the next morning.
The deeds disposing of decedent’s real estate were, at his request, prepared by Byrnes during the previous Sunday and Monday, and executed November 20th, as the dates of the instruments show. Deceased asked Byrnes on the previous Saturday if he would draw up some deeds for him and, on Byrnes consenting to do so, told him in detail what he wanted. Bymes obtained blank forms and started to draw up the papers the following day in compliance with the deceased’s directions. Though ill with a supposed bad cold, the latter was up and dressed and had gone out doors during that day. He looked for and found amongst his private papers a tax receipt of his Allegan county farm of 140 acres for Byrnes to get the description from, told him how he wanted the deeds made, one to his son John of the home farm of SO acres, one of 100 acres from his 140 acre farm in Allegan county to his daughter Edna and one of the remaining 40 acres to his daughter Ellura. He also had him draw up a contract by which John and Edna each agreed to pay deceased during his life annually $100, and on his death each to pay $125 for his funeral expenses. Byrnes testified that he merely drafted the papers as a conveyancer, deceased did not ask for any advice and he did not give him any, but he did ask Byrnes’ charges for drawing up the papers and paid it when told the amount. After the papers .were prepared Byrnes read them over to deceased, and he said they were all satisfactory, except he wished to have inserted after the name of his daughter Edna “and her heirs.” An old neighbor named Witherell was called in as a witness. Deceased then signed the deeds in the presence of Witherell and Byrnes, as they both testify, and they signed as subscribing witnesses. Byrnes as justice of the peace took deceased’s acknowledgment. Deceased told Byrnes not to deliver the deeds until he was released from a note to a Mr. Wadsworth on which he had gone security for Edna’s husband. The next day the canceled note was brought to him. He took it and tore his name off, saying to Byrnes “deliver these other two deeds.” On the morning of the day he died he asked for Byrnes and when the latter went into the sick room enjoined it upon him to “deliver Ellura her deed.” These and other facts testified to of like import are only contradicted by indirect testimony to the effect deceased was not in physical or mental condition to say and do those things, and opinion testimony that his name as signed to the deeds is not his signature.
When hearing of the case was resumed on October 11th, and plaintiff had been permitted to amend her bill by alleging the defense that the deeds were never signed by deceased, her counsel called in support of that allegation a witness from Detroit named Courtney who defined his calling as “a handwriting expert and examiner of disputed documents.” In qualifying as an expert he spoke well of himself, said there were only about ten such experts in the United States, that on the only two occasions he had ever been confronted with experts he was not mistaken, but explained “when I say experts I am talking about experts and not about bank cashiers.” With charts showing enlargements of what he termed “disputed” and “standard,” or undisputed, signatures of deceased, and also the handwriting of Byrnes, he by explanations and comparisons demonstrated to an alleged verity the proposition that the disputed signature was written by Byrnes, and so gave his opinion as an expert that the disputed signatures to the deeds were not those of deceased. Though the defense did not have at command any of the only ten real experts in the United States, they produced on that issue two bank cashiers who qualified as experts from long years of experience in examining and comparing signatures, and testified that in their opinions the signatures in dispute were the genuine signatures of deceased. We have, as did the circuit judge, examined carefully the deeds, agreements, signatures, disputed and standard, made exhibits in the case, and the conflicting testimony of the experts which we are unable to find is overwhelmingly conclusive either way. Thrown into the balance of that issue is the positive testimony of the two subscribing witnesses, elderly men whose characters and reputations in that community are not otherwise questioned, one a magistrate for 47 consecutive years and the other an apparently disinterested neighbor incidentally asked in as a subscribing witness, who said he did not know “as it was much of my business any way,” but stated under oath that he looked over deceased’s shoulder and saw him write it, and signed the papers as a witness. Added to this is the convincing evidence from the record taken in its entirety that the execution of those deeds for the disposition of his estate was deceased’s independent conception, in harmony with what he planned to do and told others he was going to do. We are unable to disagree with the conclusions of the trial judge, who heard and saw all the thirty odd witnesses in the case, that plaintiff has failed to sustain by a preponderance of evidence any of the three grounds of invalidity launched against the conveyance in question.
The decree will stand affirmed, with costs to defendant.
McDonald, C. J., and Bird, Sharpe, Moore, Fellows, and WlEST, JJ., concurred. CLARK, J., did not sit. | [
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McDonald, C. J.
This action was brought to recover damages for fraud in the sale of an automobile insurance policy. The plaintiff is a dentist engaged in the practice of his profession in Kalamazoo, Michigan. In 1918, he owned a Buick automobile of the value of $800. ■ Mrs. Minnie Buell, an agent of the defendant, solicited him to take out a policy with her company. He did so. The facts as to the representations made by the agent are undisputed. The agreement was that he was to receive a policy insur ing Mm against loss from fire or theft in the sum of $800 and against liability for $5,000. With this understanding he signed an application and received his policy. Neither the application nor the policy contemplated such insurance as the agent had agreed to furnish. In both the liability of the defendant company was limited to $800. The plaintiff did not. read the application before he signed it and did not read the policy when he received it. His excuse for not doing so is that he trusted in the honesty of the agent. He received and retained the policy supposing that he was protected to the extent of $5,000. A few months later he had a collision with a motorcycle on account of which a judgment for damages in the sum of $4,075 was obtained against him. That action was defended by the company. The plaintiff was advised not to make any settlement and was promised by the field manager and by the attorney that the company would pay the judgment if one was obtained against him. After judgment the defendant company refused to pay more than $800, informing the plaintiff 'that such amount was the limit of its liability under the policy. Up to this time the plaintiff had not examined the policy but had rested in the belief that the company had given him such a policy as the agent had agreed to furnish. He then began this suit for damages on the theory that, following a general scheme to defraud, the defendant had agreed to issue to him a policy in which he was protected to the extent of $5,000, and through fraud and deceit he was led to accept a policy which did not afford him the protection that defendant agreed to furnish.
We think that the circuit judge correctly disposed of the case. The defendant issued and delivered to the plaintiff the kind of policy .that his application called for. He supposed that the application was for a policy in which he would be protected to the extent of $5,000, but he would have known better if he had read it. He was not prevented from doing so by any trick or artifice, and was as competent to transact the business, as was the agent. By reading the application he could have prevented the fraud complained of. His failure to do so was inexcusable negligence. And when he received the policy it was his duty to examine it to see if it conformed to his agreement with the agent. He did not do so but put it away unread until a question arose some months later in regard to the extent of the defendant’s liability. Having negligently failed to read the application and having accepted and retained the policy for an unreasonable time without examining it, he is now estopped in this action at law from asserting that he was defrauded. The law applicable to the facts and circumstances of this case is discussed and authorities cited in the note to Bostwick v. Insurance Co., 67 L. R. A. 705 (116 Wis. 392, 89 N. W. 538, 92 N. W. 246).
The judgment is affirmed, with costs to the defendant.
Clark, Bird, Moore, Steere, and Fellows, JJ., concurred. Sharpe and Wiest, JJ., did not sit. | [
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Fellows, J.
Plaintiff owns four drain orders drawn on the fund of the Craner Creek drain, a three county drain, which were issued to one Lucas for bridge construction work done by him during the construction of the drain. The orders were presented for pay ment when there was enough money in the fund to pay them and payment was refused on the advice of the prosecuting attorney. Plaintiffs sought to compel payment by mandamus. A township and several interested parties were permitted to intervene, and upon their application and that of defendants the case was transferred to the chancery side of the court and the interveners filed a cross-bill seeking to set aside the drain proceedings and restrain payment of. the orders. From a decree for interveners and defendants, plaintiff appeals.
No question is raised as to the propriety of the transfer of the case, and we shall dispose of it as it comes to us as an equity case. The final order of determination was made November 10, 1920, and the cross-bill attacking the validity of the proceedings was filed October 22, 1923, long after the drain and bridges were fully constructed. The cross-bill did not allege any fraud but upon the trial some claim was made that Mr. Lucas’ bid was lower than the price fixed in the contract and that the yardage was not as large as he was paid for. We think neither claim is sustained on this record. It is here urged that the notice to interested parties provided for in section 4902, 1 Comp. Laws 1915, as amended (Comp. Laws Supp. 1922, § 4902), was not given. The record affirmatively shows publication and posting of the notice but is silent as to service on the interested parties. In the absence of any evidence we must assume that the officers did their duty. Collins v. City of Detroit, 195 Mich. 330. One of the orders was for flooring bridge on a trunk line highway (M-76) and it is urged that this work should have been separately let to the lowest bidder. But this was a part of the construction of this bridge and was made necessary by requirements of the State highway department. The payment was at the contract price which was the lowest bid. One of the orders was signed by only two of the commissioners, but its transfer to plaintiff was tantamount to an assignment of Mr. Lucas’ claim for labor. Sandusky Grain Co. v. Condensed Milk Co., 214 Mich. 306, 328. What we have said demonstrates that no constitutional rights of the complaining parties have been invaded.
The principal complaint against the regularity of the drain proceedings is that the survey and plans for the bridges were made by a surveyor who had not registered under the provisions of Act No. 334, Pub. Acts 1919, § 19 (Comp. Laws Supp. 1922, § 6897 [19]). The survey was made by Mr. Lucas, a surveyor of 20 years’ experience; the plans for the bridges were also made by him; the expenditure exceeded $2,000. Some of the work in surveying and making the plans was done before and some after the act took effect. The orders here involved are not for the service of Mr. Lucas in making the plans and doing surveying so that In re Reidy’s Estate, 164 Mich. 167, and kindred cases do not apply. The fact that Mr. Lucas made the plans did not preclude him from bidding on the contract, or preclude the drain commissioners from letting the contract to him if he was the lowest responsible bidder. The orders here involved are orders issued to him as á contractor. The contention is that section 19 of the act in question inhibits the use of plans and surveys made by unregistered surveyors and engineers and that,, therefore, there has been no legal survey or plans made. We shall not consider the constitutionality of the act; it is not raised. Nor shall we consider its applicability to drain proceedings or its construction. The failure to observe it does not affect the constitutional rights of the complaining parties and is an irregularity at most. The case should, we think, be disposed of under former decisions of this court and upon broad equitable principles. This irregularity, if it is an irregularity, is one which can not be taken advantage of in a court of equity at this late day. There is nothing so far as this record discloses or so far as any claim is made by defendants even intimating that Mr. Lucas was not a competent engineer. He had had 20 years of experience, a large amount of it being in connection with drains. The record affirmatively shows that he fully performed his contract with the commissioners and that his work even up to the time of the hearing had stood the test. While all of this work was going on the now complaining parties stood by and saw it done without protest. None of them appealed from the assessment of benefits, none of them sought review of the proceedings by certiorari, a remedy provided for by section 4908, 1 Comp. Laws 1915. They now have and for some time have had the benefit and use of the drain and the bridges, and a court of equity will not now listen to their stale complaint.
The statute just cited provides for review of the proceedings by certiorari and says:
“If no certiorari be brought within the time herein prescribed, the drain shall be deemed to have been legally established, and its legality shall not thereafter be questioned in any suit at law or equity.”
In Township of Clarence v. Dickinson, 151 Mich. 270, Mr. Justice Carpenter, who wrote for the court, pointed out that while a court of equity would assume jurisdiction where constitutional rights had been invaded it would not do so but would leave the parties to their statutory remedy where only questions of irregularities which did not affect such rights were involved. Numerous othei cases in this court have in effect announced the same rule; and it is particularly applicable where interested parties, as in the instant case, have stood by and seen the work progress, and after the job was completed and they have secured the benefits, and the pay day has arrived, insist in an attempt to defeat payment that the statutory provisions have not all been strictly followed, and they should, therefore, be relieved of payment for the benefits secured. Among such cases see Township of Swan Creek v. Brown, 130 Mich. 382; Farr v. City of Detroit, 136 Mich. 200; Crandall v. McElheny, 146 Mich. 191; Auditor General v. Bolt, 147 Mich. 283; Jones v. Gable, 150 Mich. 30; Stellwagen v. Dingmam, 229 Mich. 159.
The decree will be reversed and one here entered granting plaintiff the appropriate relief. Plaintiff will recover costs of both courts.
McDonald, C. J., and Claek, Mooee, Steeee, and Wiest, JJ., concurred. Bied and Shaepe, JJ., did not sit. | [
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Clark, J.
Suit was commenced by declaration. There was judgment by default. More than six months after entry of default defendant moved to set it aside, showing, as we find, that at the time of entry of default there was not a return of service of the declaration, as the practice requires. 3 Comp. Laws 1915, § 12441. The motion by order was denied. Defendant brings error.
In facts and in applicable law the case is like Whirl v. Reiner, 229 Mich. 114. The default was irregular and, under the holding in the Whirl Case, ought to have been set aside. No other question merits discussion.
The order, the judgment, and the default are set aside, and defendant permitted to plead on terms to be fixed by the trial court, with costs to appellant.
McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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McDonald, C. J.
Willie Smith is 16 years of age. He was duly adjudged to be feeble-minded by the probate court of Wayne county, and is now confined in the State home at Lapeer. His father, with the consent of the mother, filed a petition under Act No. 285, Pub. Acts 1923, to have him sterilized. The proceedings resulted in an order by the court appointing a competent physician to treat the plaintiff by X-ray or by vasectomy, or by other treatment that may be least dangerous to life, in order to render him incapable of procreation. To secure a reversal of this order the plaintiff brings certiorari.
The purpose of the act as expressed in its title, is “to authorize the sterilization of mentally defective persons.” Mentally defective persons are deemed to include idiots, imbeciles and the feeble-minded, but not the insane. When one of this class has been adjudged mentally defective by a court of competent jurisdiction, application may be made to have him treated so that he may be incapable of procreation. Upon filing the application the court is required to fix a day for hearing, to cause a ten-day notice thereof to be given, to appoint a guardian ad litem and to name three reputable physicians to examine into the mental condition of the defective with a view to obtaining their opinions as to whether he should be dealt with under the act. At the hearing, which may be by the court alone or by the court and a jury, full evidence is required to be taken in writing as to the mental and physical condition of the defective and as to his personal history. After such hearing the court may make an order for treatment or operation to render the defective incapable of procreation whenever it shall be found:
“1. (a) That the said defective manifests sexual inclinations which make it probable that he will procreate children unless he be closely confined, or be rendered incapable of procreation;
“(b) That children procreated by said adjudged defective will have an inherited tendency to mental defectiveness; and
“(e) That there is no probability that the condition of said person will improve so that his or her children will not have the inherited tendency aforesaid; or
“2. (a) That said defective manifests sexual inclinations which make it probable that he will procreate children unless he be closely confined, or be rendered incapable of procreation; and
“(b) That he would not be able to support and care for his children, if any, and such children would probably become public charges by reason of his own mental defectiveness.” Act No. 285, Pub. Acts 1923, § 7.
The question presented for our consideration is whether this act is a valid exercise of police power within the limitations of the Constitution.
It is first urged by counsel for the plaintiff that the act is an unreasonable, arbitrary and unnecessary interference with the fundamental rights and privileges of individuals, that its effect upon the person or upon the public welfare is experimental, and that courts cannot sustain it as a valid exercise of police power until science or experience has demonstrated its reasonableness. Biological science has definitely demonstrated that feeble-mindedness is hereditary. The English royal commission of 1904 took the testimony of all the noted experts of England on the subject of mental diseases. The consensus of opinion thus gathered was that feeble-mindedness, if not accidental, is hereditary. It would not be advisable to extend this opinion by repeating the testimony of these eminent biological and medical experts. We may content ourselves with quoting from Dr. A. F. Tredgold, one of the greatest authorities on feeble--mindedness, who, after reviewing the findings of the royal commission, says:
“It is quite clear, therefore, that there is now an overwhelming body of evidence from those qualified by experience to express an opinion on this matter, to the effect that in the great majority of cases of amentia (feeble-mindedness) the condition is due to innate or germinal causes, and that it is transmissible.” Mental Deficiency, Edition of 1916, by Dr. A. F. Tredgold.
To the same effect are the opinions of many notable biological students in this country. In the “Trend of the Human Race,” by Samuel J. Holmes of the University of California, it is said:
“The fact that defective mentality is strongly transmitted is established beyond the possibility of sane objection, and the particularly disastrous results that are pretty sure to follow from the mating of two mentally defectives have certainly been made sufficiently impressive by the work of recent investigators.”
From this and a great quantity of other evidence to which we will not here refer, it definitely appears that science has demonstrated to a reasonable degree of certainty that feeble-mindedness is hereditary. This fact, now well known, with its alarming results, presents a social and economic problem of grave importance. It is known by conservative estimate that there are at least 20,000 recognized feeble-minded persons in the State of Michigan. Eight times as many as can be segregated in State institutions. The Michigan home and training school at Lapeer is full to overflowing with these unfortunates, and hundreds of others are on the waiting lists. That they are a serious menace to society no one will question.
In view of these facts, what are the legal rights of this class of citizens as to the procreation of children? It is true that the right to beget children is a natural and constitutional right, but it is equally true that no citizen has any rights superior to the common welfare. Acting for the public good, the State, in the exercise of its police powers, may always impose reasonable restrictions upon the natural and constitutional rights of its citizens. Measured by its injurious effect upon society, what right has any citizen or class of citizens to beget children with an inherited tendency to crime, feeble-mindedness, idiocy or imbecility? This is the right for which Willie Smith is here contending. It is a right which this statute, enacted for the common welfare, denies to him. The facts and conditions which we have here related were all before the Michigan legislature. Under the existing circumstances it was not only its undoubted right, but it was its duty to enact some legislation that would protect the people and preserve the race from the known effects of the procreation of children by the feeble-minded, the idiots and the imbeciles.
Thus far we have been attempting to show that this statute, measured by the purpose for which it was enacted and the conditions which warranted it, and justified by the findings of biological science, is a proper and reasonable exercise of the police power of the State. The next question that naturally follows is whether the means provided by the statute to carry out its object are so cruel, inhuman, unreasonable and oppressive, that the legislature has no constitutional right to enforce them.
It is claimed that the statute violates section 15, art. 2, of the Constitution, which provides that “cruel or unusual punishment shall no.t be inflicted.” The only purpose of this constitutional provision is to plane a limitation on the power of the legislature in fixing punishment for crimes. There is no element of punishment involved in the sterilization of feeble-minded persons. In this respect it is analogous to compulsory vaccination. Both are nonpunitive. It is therefore plainly apparent that the constitutional inhibition against cruel or unusual punishment had no application to the surgical treatment of feeble-minded persQns. It has reference only to punishments inflicted after convictions of crimes. The provision in the Federal Constitution (8th Amendment), quite similar in its language, does not apply to State legislatures. Weems v. United States, 217 U. S. 349 (30 Sup. Ct. 544, 19 Ann. Cas. 705), and cases referred to therein. The following cases, cited to sustain the claim that the act is in violation of the above provision, do not justify the conclusion reached.
In Re Thomson, 169 N. Y. Supp. 638 (affirmed without opinion in 185 App. Div. 902), it is said:
“The operation upon the feeble-minded is in no sense in the nature of a penalty, and therefore whether it is an unusual and cruel punishment is not involved.”
In Davis v. Berry, 216 Fed. 413, the act in question required the performance of an operation on criminals who had been convicted of a felony. It in no way referred to feeble-minded persons.
In Smith v. Board of Examiners, 85 N. J. Law, 46 (88 Atl. 963), it was held that an act violated the 14th Amendment, which secures to all persons “the equal protection of the laws.” The statute applied also to the feeble-minded, but the court said that as the prosecutrix was an epileptic it was not concerned with the criminal aspect of the act.
In Mickle v. Henrichs, 262 Fed. 687, the act in terms applied only to persons convicted of rape, upon a female child under the age of ten years.
In State v. Feilen, 70 Wash. 65 (126 Pac. 75, 41 L. R. A. [N. S.] 418, Ann. Cas. 1914B, 512), the statute was somewhat similar to that considered in Davis v. Berry, supra. It in no way referred to feeble-minded persons.
But the methods provided by the statute to accomplish its purpose are not cruel or inhuman. It requires treatment by X-rays or the operation of vasectomy on males or salpingectomy on females, or other treatment as may be least dangerous to life. These operations are the least radical known to medical science. None of them requires the removal of any of the organs or sex-glands, the result being accomplished by a severance of the sex-germ carrying ducts. The operation does not destroy sexual desires or capacity for sexual intercourse, but renders procreation impossible. In 2 Penal and Reformatory Institutions, prepared for the Eighth International Prison Congress, Russell Sage Foundation, Dr. Sharp, surgeon of the reformatory at Jeffersonville, Indiana, speaking of vasectomy says:
“This operation is indeed very simple and easy to perform. I do it without administering an anaesthetic either general or local. It requires about three minutes time to perform the operation and the subject returns to his work immediately, suffering no inconvenience and is in no way impaired for the pursuit of life, liberty and happiness, but is effectively sterilized. I have been doing this operation for over nine years. I have 456 cases that have afforded splendid opportunity for post operative observation, and I have never seen any unfavorable symptoms.
“After observing nearly 500 males, in whom I have severed the vas deferens, I am prepared to state that there is not only a diminution of the muscular and nervous fatigue, resulting from muscular exertion, but also a lessening of fatigue sensation and a decided increase of well being. I have observed splendid results in cases of neurasthenia.”
By another authority it is said:
“Vasectomy is a very simple operation, which is accompanied by very little shock, and may be performed without an anaesthetic, although most surgeons advise that it be done under local anaesthesia. Its pain without an anaesthetic has been compared by men who were vasectomized to that experienced in the extraction of a tooth.”
Salpingectomy is recommended as the best available method for the sterilization of females. It is a more serious operation than vasectomy, but is safely and effectively performed by the skillful surgeon. 3 Surgical Treatment (Warbasse), p. 429.
As to the X-ray treatment, Dr. Arthur C. Christie, president of the American Roentgen Ray Society, says that, “no physiological dangers accompany the proper application of X-rays for effecting sterility.”
It is clearly apparent, therefore, that the methods provided by the statute for carrying out its purpose are not unreasonable, cruel or oppressive, and that the results are beneficial both to the subject and to society.
It is further urged by counsel that the statute makes an unconstitutional classification, that it excepts the insane, that it does not apply to all mental defectives, and thus denies to the class upon which it is intended to operate their constitutional right to equal protection of the laws. In discussing this question we will follow the order in which the classification is made by the statute. Section 7 makes two separate and distinct divisions to which the act is made applicable.
“1. (a) That the said defective manifests sexual inclinations which make it probable that he will procreate children unless he be closely confined, or be rendered incapable of procreation;
“(b) That children procreated by said adjudged defective will have an inherited tendency to mental defectiveness; and
“(g) That there is no probability that the condition of said person will improve so that his or her children will not have the inherited tendency aforesaid.
“2. (a) That said defective manifests sexual inclinations which make it probable that he will procreate children unless he be closely confined, or be rendered incapable of procreation; and
“(b) That he would not be able to support and care for his children, if any, and such children would probably become public charges by reason of his.own mental defectiveness.”
“It is elementary that legislation which, in carrying out a public purpose for the common good, is limited by reasonable and justifiable differentiation to a distinct type or class of persons is not for that reason unconstitutional because class legislation, if germane to the object of the enactment and made uniform in its operation upon all persons of the class to which it naturally applies; but if it fails to include and affect alike all persons of the same class, and extends immunities or privileges to one portion and denies them to others of like kind by unreasonable or arbitrary subclassification, it comes within the constitutional prohibition of class legislation.” Haynes v. Lapeer Circuit Judge, 201 Mich. 138 (L. R. A. 1918D, 233).
Applying the tests announced by Mr. Justice Steeee to the first division of the classification, it would seem clear that it is not unconstitutional as class legislation. It is germane to the object of the enactment, the common good. It is made uniform upon all persons of the class to which it naturally applies. It is a reasonable classification because it applies to a class of feeble-minded persons who are a menace to the public welfare. In making this classification the legislature did not carve a class out of a class, but took a natural class of defectives whose children will have an inherited tendency to feeble-mindedness. It is as reasonable and no more class legislation than the compulsory vaccination of those who have been exposed to smallpox. The feeble-minded include distinct types of which the imbeciles and' idiots are lower orders. The legislature took one of these natural classes and applied the law to all members alike. The insane do not belong in this class and there are apparent good and substantial reasons why the legislature differentiated between them. While we do not know, of course, what the legislature had in mind, it is reasonable to suppose that they knew that the insane have less of the sexual impulses than the feeble-minded, and that biological science has not so definitely demonstrated their inheritable tendencies. We think the classification made in the first division of section 7 of the statute is not arbitrary or unreasonable, and that in this respect it does not offend the constitutional provision which gives to every person equal protection of the laws.
The second division of the classification in section 7 presents a different situation. It brings within the operation of the law only those of the feeble-minded class who are unable to support any children they might have and whose children probably will become public charges by reason thereof. The evident purpose of the legislature in enacting the second division was to protect the public from being required to support the children of mentally defective persons. In attempting to do so, an element inconsistent with the beneficial purpose of the statute was introduced. It is not germane to the object of the enactment as expressed in its title. It carves a class out of a class. In that it does not apply to those of the class who may be financially able to support their children, it is not made applicable alike to all members of the class. We think that it is subject to the constitutional objection discussed by Justice Steere in Haynes v. Lapeer Circuit Judge, supra, and by Justice Sharpe in Peninsular Stove Co. v. Burton, 220 Mich. 284.
As the first division of section 7 is a complete classification in itself, its constitutionality is not in any way affected by that of the second.
Nor does this statute violate the “due process of law” clause of the Constitution. It requires ample notice of the time and place of hearing by personal service not only on the alleged defective but upon the prosecuting attorney of the county, upon the relatives, father, mother, wife or child of the defective, or upon the person with whom he resides, or at whose house he may be; and in ease no relatives can be found service is required upon a guardian ad litem appointed by the court to receive such notice and to represent the defective at the hearing. Regular proceedings are followed and opportunities to defend with the right of appeal are provided. Nothing further is required by the “due process of law” clause of the Constitution.
It is further urged that the statute is a violation of article 11, § 15, of the State Constitution, which reads as follows:
“Institutions for the benefit of those inhabitants who are deaf, dumb, blind, feeble-minded or insane shall always be fostered and supported.”
This constitutional provision, that institutions for the benefit of the feeble-minded “shall always be fostered and supported” is in no way controlling of the question before us. Many people believe that the most effective way of accomplishing the result aimed at is by segregation. The legislature, in pursuance of the constitutional provision, has established a home for the feeble-minded at Lapeer. In its opinion, as evidenced by this statute, additional legislation was needed to prevent the spread of feeble-mindedness among our people. In terms it specifically applies to inmates of such institutions. Its provisions in no way violate either the letter or spirit of this provision of the Constitution.
Further objection is made to the statute because it does not provide what court shall have jurisdiction of the cases to be brought under it. While this is not done in the regular way, we think subdivision (d) of section 3 sufficiently shows that the legislature intended the probate court, before which all matters pertaining to mental defectives are usually heard, to have jurisdiction to hear and to determine cases to be dealt with by this statute.
The other objections urged against the statute by counsel for the plaintiff in his very able and exhaustive brief we have considered, but as they clearly appear to be without merit we do not discuss them.
Our attention is called to the recorded decisions of other States where sterilization laws have been held to be unconstitutional. In most of them there was a plain and unreasonable violation of constitutional rights. But an examination of these cases will show that the great weight of authority supports the right of the State in the exercise of its police power to enact reasonable legislation for the sexual sterilization of certain natural classes of mental defectives and degenerates.
In examining the recorded decisions of other jurisdictions, we have read the sterilization statutes of 10 States. In most of them the matter of determining whether a defective shall be dealt with under the act is left to an administrative officer or board. In the Michigan statute that matter is left to court procedure and judicial determination, aided by the expert knowledge of three competent physicians. The distinguishing feature of our statute is found in these provisions and in the safeguards which it throws around those of the class who have not the inherited tendencies which bring them within the operation of the law. .It provides for a jury trial and the right of appeal. It requires all testimony to be taken in writing and a complete record made, so that it may be reviewed.
In the operation of this statute the only serious question, as we view it, is whether the fact that defective mentality is of such a character and due to such causes that children procreated by a person so afflicted will have an inherited tendency to mental defectiveness, can be determined with reasonable certainty. Primarily, this question was for the legislature, and they have answered it in the affirmative by the enactment of the statute. As was said in Adkins v. Children’s Hospital, 261 U. S. 525, 544 (43 Sup. Ct. 394, 24 A. L. R. 1238):
“The judicial duty of passing upon the constitutionality of an act of congress is one of great gravity and delicacy. The statute here in question has successfully borne the scrutiny of the legislative branch of the government which, by enacting it, has affirmed its validity; and that determination must be given great weight.”
After referring to the “unbroken line of decisions” holding “that every possible presumption is in favor of the validity of an act of congress until overcome beyond rational doubt,” it is said:
“But if by clear and indubitable demonstration a statute be opposed to the Constitution we have no choice but to say so.”
Many of our Michigan cases announcing a similar rule will be found cited in Moore v. Harrison, 224 Mich. 512, 515.
To answer the question suggested- in the negative, we must be satisfied “beyond rational doubt” that the facts’which under the statute must be found to exist by the probate court to justify the making of an order for sterilization cannot be established by competent proof. If the proofs submitted be insufficient, he should, of course, refuse to make the order.
That feeble-mindedness is hereditary in certain cases, there can be no doubt. While a difference of opinion undoubtedly exists as to whether the condition of feeble-mindedness in a particular person is such that it is reasonably certain his children will, or will not, be affected thereby, we are of the opinion that the weight of authority, as evidenced by scientific writings and reports, are convincing that it may be so determined. We can at least say that we are not convinced to the contrary “beyond rational doubt.”
In comparison, our statute is much more reasonable and conservative than the laws of other States. Yet those States, with less perfect laws on the subject, have found that in their practical working out they have been satisfactorily beneficial both to the person and to society. California, a pioneer State in the matter of sexual sterilization, during the period between 1907 and 1921, sterilized 2,558 persons. During the same period, under the various statutes, a total of 3,233 persons were sterilized in the United States. Of these 1,853 were males operated on by vasectomy and 1,380 were females operated on by salpingectomy. See Laughlin’s Statistical Summary in “Eugenieal Sterilization in the United States.” These statistics are referred to in refutation of the claim that our law is an experiment.
The Michigan statute is not perfect. Undoubtedly time and experience will bring changes in many of its workable features. But it is expressive of a State policy apparently based on the growing belief that, due to the alarming increase in the number of degenerates, criminals, feeble-minded and insane, our race is facing the greatest peril of all time. Whether this belief is well founded is not for this court to say. Unless for the soundest constitutional, reasons, it is our duty to sustain the policy which the State has adopted. As we before have said, it is no valid objection that it imposes reasonable restraints upon natural and constitutional rights. It is an historic fact that every forward step in the progress of the race is marked by an interference with individual liberties.
Except as to the second division of section 7, this statute should be sustained as a reasonable exercise of the police powers of the State within the limitations of the Constitution.
While sustaining the statute as a valid exercise of the police power vested in the legislature, we are of the opinion that the order made by the defendant should be set aside because the statutory proceedings were not followed. The return to the writ states that all of the records and proceedings in the probate court are fully set forth in the petition for the writ. The calendar entries are annexed. The petition to the probate court was filed on December 28, 1928. The physicians were at that time appointed, and an order fixing January 24, 1924, for hearing was made. On that day, the certificates of' the physicians were filed and the hearing continued until February 14th, on which day the petition was “heard and submitted.” On April 14th, two months thereafter, Mr. Butzel was appointed guardian ad litem. On the 19th he filed objections to the making of the order for sterilization. It was made on April 21st. There was no such substantial compliance with the statute as conferred jurisdiction upon the court to make the order. It contains specific provisions as to the procedure in such cases. When the petition is filed, an order of hearing shall be made and served, as directed in section 4. A copy must be served on the guardian ad litem. Clearly, the guardian must be appointed when the order of hearing is made.
There is no provision for the filing of certificates made by the physicians. The procedure is in no way similar to that provided for on petitions to commit to an insane asylum (1 Comp. Laws 1915, § 1325). Section 5 provides:
“The court shall cause the defective to be examined by three reputable physicians * * * with a view to obtaining the opinion of said physicians on the Question whether the adjudged defective should be dealt with under the terms of this act.”
The intent is clear that the physicians shall appear in court at the hearing and submit to an examination by the court, the prosecuting attorney, the guardian or other person upon whom notice has been served. The certificates filed in this case are simply statements in the language of the statute that the facts are present which the court must find to warrant the making of the order. It is not for the physicians to determine the question before the court. While, of course, they may express their opinions concerning it, the reasons for such opinions should be inquired into in order that the court may, after due consideration thereof and of the other proof submitted, as provided for in section 6, determine whether the person examined should be dealt with under the terms of the act.
Section 6 reads:
“The court shall take full evidence in writing at the hearing as to the mental and physical condition of the adjudged defective and the history of his case." * * *
No witnesses were examined. This provision is mandatory, and must be complied with.
No more important duty devolves on a probate judge than that imposed on him under this act. The responsibility of determining that a surgical operation shall be performed on a human being who is mentally defective “for his own welfare or the welfare of the community” rests upon him, and it may properly be discharged by him only on the most painstaking and thorough investigation of the facts disclosed upon the hearing. The requirements of the statute above referred to are jurisdictional, and no valid order can be made without a substantial compliance with them.
It follows that the order made will be vacated and set aside.
Sharpe, Moore, and Steere, JJ., concurred with McDonald, C. J. | [
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McDonald, C. J.
This bill is filed to obtain an accounting from Frank D. Terrill, who was formerly in partnership with the plaintiff, and to recover from both of the defendants $7,000 in bonds which the plaintiff claims were purchased with his money and belong to him. In their answer the defendants deny that they or either of them are indebted to the plaintiff in any sum whatever. As to the bonds they contend that they were a gift from the plaintiff to defendant Bertha B. Terrill in fulfillment of a promise' previously made to purchase her a home; and that in any event, before the commencement of this suit, all of their differences were compromised and settled, as is evi-. denced by a writing in which all of the parties joined and in which the plaintiff released any claims which he may have had against them and particularly his pretended claim to the bonds in question. At the conclusion of the proofs the circuit judge dismissed the bill. From the decree entered, the plaintiff has appealed.
In view of the evidence it will not be necessary to undertake a determination of a partnership accounting between these parties. That matter will only be discussed so far as may be necessary in determining the question, whether the plaintiff is entitled to the bonds or their proceeds. As we view the record that is the only issue involved. In determining this question it will be helpful to refer briefly to some of the undisputed facts. In February, 1910, the plaintiff and defendant Frank D. Terrill formed a partnership to engage in the poultry business. While for nearly ten years they were thus associated, they do not seem to have actually engaged in the business, though they succeeded in spending thousands of dollars, all of which was furnished by the plaintiff. Mr. Terrill had no money. At first the plaintiff was receiving a regular weekly allowance from his father; later by inheritance he came into possession of considerable property, a large part of which went into the bank in the firm name of Terrill & Rice. The plaintiff had no home and it was understood that he was to live with the defendants. Their chief trouble seems to have been in securing a location for their poultry business. They at first bought a farm in Michigan, but deciding that it was not suitable, they purchased an automobile and camping outfit and traveled about through various States, spending winters in Florida and in Chicago. During all of this time the three of them were being supported with the money furnished by the plaintiff. While in Florida in the winter of 1918, a disagreement arose and they separated. The defendants went to Detroit where they both worked for nearly a year, in which time they accumulated $1,200. Then the plaintiff offered to resume their partnership relations. They agreed to the proposal, the defendant Bertha Terrill claiming that they did so after plaintiff had promised her that he would guarantee to provide her with a home “in her old age.” At this time the defendants knew that the plaintiff was soon to receive several thousand dollars from his mother’s estate. They knew that he would turn it into the firm to be handled by Mr. Terrill. Of this the circuit judge says, and we quote his remarks with approval:
“When he came back and offered to renew their relation, I am going to assume that they knew when they quit an honest-to-goodness job where they were earning their dollars, they did it with the understanding they were going to get some easy money out of this plaintiff. They must have known it from the years of experience that he did not know any better than to spend his money in a reckless manner.”
Five thousand dollars from the mother’s estate came. As usual the plaintiff turned it over to his partner, who deposited! it in the bank in the joint names of himself and wife. Other money subsequently came from the same source and was handled in the same way. With this money Mr. Terrill purchased the bonds which are the subject of this suit, and these he caused to be issued in the names of himself and wife, and deposited them in a safety box in Chicago. In August, 1921, after Mrs. Terrill had secured some sort of writing from the plaintiff, which she claims confirmed the title of the bonds in her, the partnership was dissolved, the defendants taking all of the partnership property to Chicago.
The equities of this case are strongly with the plaintiff. It is undisputed that he put many thousands of dollars in the so-called partnership, that he supported the defendants for nine years, paid their traveling expenses, their living expenses at winter and summer resorts, and when their relations were terminated they had $7,000 of bonds which they had purchased with his money, and he had a half interest in a second-hand automobile and a cream separator.
The defendants base their claim to these bonds first upon a so-called bill of sale given to Mrs. Terrill at Gun lake in 1921, and second, upon a settlement agreement made in Chicago on the 31st of August, 1921.
In their brief, counsel for the defendants say:
“It is contended in behalf of the defendants that all this money that went into the bonds was turned over in pursuance of the promise and agreement of the plaintiff, that in consideration of defendants giving up their positions in Detroit, he would guarantee the defendant Bertha B. Terrill a home in her old age.”
The plaintiff denies that he made any such promise to Bertha B. Terrill, but whether he did or not, there is no evidence that he gave her these bonds in fulfillment of that agreement. The so-called bill of sale was not offered in evidence or exhibited at the hearing. The plaintiff admits having signed some paper, but denies that it was a bill of sale. It matters not by what name it should be designated. There is but slight conflict in the evidence as to its purpose and effect. The plaintiff testified that Mrs. Terrill said to him:
“ ‘Raymond, you and Frank are traveling around a great deal in the car and you are apt to get killed. I haven’t anything except what you are furnishing, such as the bonds, and if either' of you should get killed, or both get killed, I would be left penniless. Don’t you think there ought to be something regarding— agreement of some kind regarding those bonds ?’ I said, T am willing to make an agreement to that effect, that if I am killed the bonds can be turned over to you.’ * * * I did not intend to convey those bonds away from myself, as long as I was alive.”
Mrs. Terrill testified as to the purpose of the bill of sale as follows:
“We had been on so many trips and my daughter objected; she thought it wasn’t right for me to go and take chances without having any protection. * * * My object in getting this paper drawn up was this, so that in case of the death of either Mr. Terrill or Mr. Rice or both of them, that I would be protected. There was such a paper drawn and signed.”
Mrs. Fluett, a daughter of the defendants, who was present when the bill of sale was executed, testified to her understanding of it as follows:
“As a matter of fact, those bonds were in the name of my father, or my father and mother. I understood that. This paper was drawn up so that in the event of the death of my father or Mr. Rice, my mother would have something to show that they were hers. * * *
“Q. You were the one that suggested that something ought to be drawn up so that your mother would have a legal right to get the bonds in case your father or Mr. Rice was killed?
“A. Yes, due to the fact that my father carried no insurance.”
In view of this testimony we think the circuit judge was wrong in holding that, in the transaction at Gun lake, the plaintiff gave Mrs. Terrill the absolute title to the bonds. There is no reason why he should have done so. There was no consideration for it. He had supported them for nine years and got nothing in return except their society. The circuit judge correctly characterized the attitude of the defendants in saying that they early discovered that plaintiff was an “easy mark,” and that they continued their relations with him for the purpose of getting some “easy money.” That was evidently their purpose in the settlement which they made with him in Chicago on the 31st of August, 1921. That agreement was reduced to writing and is so lacking in consideration, so grossly unfair and unconscionable that in a court of equity it cannot be permitted to stand. It gave the plaintiff a one-half interest in a Hudson motor car, a rowboat and a canvas tarpaulin. It gave the defendants $2,500 Nelson Morris & Company bonds, $2,500 Cudahy Packing Company bonds, $2,000 Midway Masonic Temple Association bonds, one Eastman kodak, one cream separator, one pair of field glasses and one complete camping outfit. These bonds were purchased with the plaintiff’s money. They were no part of the partnership property. The defendants got them without the payment of any consideration whatever. But conceding defendants’ claim that there was some consideration, it was so grossly inadequate as to shock the conscience and create a presumption of fraud. We think that in sustaining this settlement and in dismissing the plaintiff’s bill, the circuit judge erred. The plaintiff is entitled to the bonds or their proceeds.
A decree will be entered in this court granting him ■such relief, v/ith costs.
Clark, Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Clark, J.
Defendant Davis Graff owned a store business in Detroit. He had a son, Reuben. Plaintiff Abraham Epstein had a son, Meyer. The four men agreed that the sons purchase the business. The price was $45,000. By reducing the price to $35,000, Davis Graff gave his son $10,000. Abraham Epstein, as a gift to his son, paid $10,000 on the purchase price. The sons gave their notes, secured by chattel mortgage, to Davis Graff for $20,000. For the remaining $5,000, Abraham Epstein gave his note to Davis Graff and received back the note, secured by chattel mortgage, of the sons for $5,000. The sons failed in the business. Said plaintiff Epstein did not pay his note of $5,000 at maturity and was sued on it by said defendant Graff. The suit was compromised by payment of back interest, and the giving of a renewal note, secured by collateral. Later said plaintiff and his wife filed this bill against said defendant and his wife to cancel renewal note, for restoration of the collateral, and to enjoin collection. Defendants, by cross-bill, prayed decree for the amount due on the note and for resort to the collateral. The bill was dismissed and defendants were decreed the relief they prayed.
Plaintiffs appealing contend that the note and assignment of collateral were without consideration and were procured by fraud and duress. We need not consider that, by compromise of the suit on the note, plaintiffs are estopped. Judge Mandell found with defendants on the facts, rightly, we think. Plaintiffs claim that the original note for $5,000 was merely loaned to defendant Davis Graff for his accommodation. Defendants claim that it was a part of the purchase price of the business. The direct evidence on this question preponderates in favor of defendants. The circumstances and the arithmetic of the case also are with them. The claim of fraud relates chiefly to- the value of the chattel mortgage security given to plaintiff Abraham Epstein by the sons. The claim cannot be sustained. That under the management of the sons the security was impaired or lost cannot aid plaintiffs here. The charge of duress does not merit discussion.
The decree is affirmed.
McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Clark, J.
Prior to April 21, 1921, there was a copartnership in Grand Rapids of Nelson and Gage, trading as Majestic Auto Sales Company. In April, 1921, it was planned to form a corporation in Grand Rapids to be known as Majestic Auto Sales Company. Several persons subscribed for stock and gave notes therefor payable to Majestic Auto Sales Company, among them, defendants Nelson, Wilcox, Bailey, Middleton, and Kuennen. On April 21st the articles were executed and by-laws adopted. Officers were elected. Corporate meetings were held. The organization functioned as a corporation. The articles were not recorded in the office of the secretary of State nor in the office of the county clerk (2 Comp. Laws 1915, § 9025). The business failed. The corporation seems to have been promoted, largely at least, by Nelson and one Reed. For his subscription for stock, Nelson gave three notes, all dated April 4, 1921, for $1,500, $1,500, and $3,000, respectively, all payable to the order of Majestic Auto Sales Company, all made by Nelson alone, the first two indorsed “Majestic Auto Sales Co., by D. L. Reed, representative,” the last indorsed “Majestic Auto Sales Co., by D. L. Reed, Gen. Sales Mgr.” The notes in question were acquired by plaintiff bank on April 15th, April 28th, and May 27, 1921, respectively. Plaintiff bank, holding the notes, declared on them in assumpsit, and made Nelson, personally, and Nelson, Wilcox, Kuennen, Middleton, Bailey and Gage, defendants, and as copartners trading as Majestic Auto Sales Company. Nelson was not served. A verdict was directed in favor of defendants Wilcox, Bailey, Middleton and Kuennen, and judgment entered thereon. Plaintiff brings error.
Appellees cannot be held on the theory that they were members of the copartnership of Nelson and Gage, trading as Majestic Auto Sales Company, for they were not members of it. Nor can they be held personally liable as copartners because of the failure to record the articles of association. The incorporators proceeded in good faith. There is no evidence to the contrary. They proceeded under a valid statute (2 Comp. Laws 1915, chap. 175) and for an authorized purpose. They executed and acknowledged articles of association pursuant to that purpose. There was a corporation de facto, and appellees are not liable as copartners. Hamilton, Michigan Corporation Code (3d Ed.), § 83; Eaton v. Walker, 76 Mich. 579; Newcomb-Endicott Co. v. Fee, 167 Mich. 574. For a discussion of pertinent facts and applicable law, see Tisch Auto Supply Co. v. Nelson, 222 Mich. 196.
• Plaintiff sought to hold appellees by an offer of testimony that Nelson'and Reed represented to the plaintiff at the time it purchased the notes that appellees were personally liable upon the said indorsement of the notes. In directing a verdict Judge Perkins held the testimony incompetent for the reason that it was not shown that Nelson and Reed, or either of them, had authority to make such representation. He was not in error. A fraud was perpetrated on the plaintiff. But appellees are blameless.
Judgment affirmed.
McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows and Wiest, JJ., concurred. | [
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Steere, J.
This mandamus proceeding arises out of a suit in the Wayne county circuit court, in chancery, entitled Jean Tong and Oscar Tong v. Grover C. Ake and Ada O. Ake, brought by the Tongs for cancellation of a contract by the terms of which they agreed to buy from the Akes a short time lease of and the furniture in a rooming house on Second avenue in the city of Detroit for the price of $7,500, with a substantial payment down and a series of notes for deferred payments of the balance of the purchase price. The contract was executed on March 31,1924. The Tongs then made the initial payment, gave their notes as agreed for the balance and were let into possession. Not long thereafter they discovered, as claimed, that they had been sadly deceived in numerous material particulars and induced to enter into the contract by a series of grossly false and fraudulent representations upon which they, in ignorance of the truth, relied. They thereupon repudiated the contract, tendered back to the Akes a reassignment of the lease- and possession of the property, demanded return of the money they had paid and the notes they had given them. The Akes yet occupied quarters in the rooming house, and after their refusal of the conditional tender and demand by the Tongs, the latter left and began suit for cancellation of their contract, asking that it and the notes they had given be declared void and ordered canceled, and an order or decretal judgment for return of the over $3,000 which they had been fraudulently induced to pay on the contract. When brought to issue the case was heard upon its merits on testimony taken in open court. The presiding judge then rendered an opinion reviewing the issues raised, finding plaintiffs had fully sustained the allegations of false and fraudulent in ducements in their bill and held they were entitled to the relief asked. A final decree in harmony with the opinion was signed and filed by him on December 23, 1924.
This decree is carefully worded and covers the subject in detail. It declares in substance that the Tongs are entitled to the full relief prayed for, declares void the contract and series of notes given by them for deferred payments on it, directs they be turned over to the Wayne county clerk for cancellation within ten days, orders and decrees that the money which defendants secured from plaintiffs, amounting with interest to $3,700, be returned to them within ten days and—
“that such sums shall be paid by the said defendants as aforesaid to the clerk of the Wayne circuit court. * * * And that all of such sums of money when received by the said clerk of Wayne circuit court from the said defendants shall be paid to the plaintiffs by said clerk upon presentation of copy of this decree to said clerk.”
A lien in the nature of a chattel mortgage was given plaintiffs upon the furniture involved for the amount decreed, with power to foreclose the same, also right of execution therefor against the real and personal property of defendants, and if those methods failed in whole or in part it was further decreed that the Tongs might “have writ of body execution against the body of said defendant Grover C. Ake.” Plaintiffs were awarded costs to be taxed.
Defendants’ counsel seasonably gave notice of appeal and paid the appeal fee to the clerk, but filed no bond to stay execution, and within the ten days defendants turned over to the clerk the contract and notes held invalid and paid to him the $3,700 as the decree directed, taking his receipt therefor. They also paid plaintiffs’ attorneys their taxed bill of costs amounting to $109.40. On January 5th, plaintiffs’ attorneys presented to the clerk a certified copy of the decree and demanded of him the money and notes, claiming right thereto under the terms of the decree. The clerk declined to comply with their demand without an order from the court to do so. The judge who presided at the hearing and rendered the decree was from another circuit to which he had then returned. Following this demand and refusal, defendants’ counsel, on January 6, 1925, served plaintiffs’ counsel with notice of a motion to be heard before one of the Wayne county circuit court judges, on January 10, 1925, for extension of time to perfect their appeal and justify proposed sureties for stay of execution under the statute. Plaintiffs’ counsel appeared and objected to the motion being entertained on the ground that defendants had fully satisfied the decree by payment of the entire amount decreed to the clerk, whose duty it then was under the mandatory provisions of the decree to pay the same to plaintiffs on their presenting to him a copy of said decree, which they had done before receiving notice of the application objected to. The judge overruled the objection and entered an order extending the time. He at first refused to approve of the sureties proposed but with certain changes eventually accepted the bond upon condition that the money paid to the clerk under the decree remain with him pending the appeal, saying in part, “If it had not been for the fact that the money had been paid into court I would not approve this bond, because it would not be sufficient.” Plaintiffs then made application to this court for an alternative writ of mandamus requiring said judge to set aside his conditional approval of sureties on the stay bond and order extending time to perfect an appeal.
In answer to an order to show cause defendant herein makes return admitting consecutively eleven of the twelve paragraphs constituting plaintiffs’ applica tion for an alternative writ. In answer to the twelfth concluding paragraph defendant “neither admits nor denies the relators are entitled to the relief sought for in their petition” and submits the question to this court, requesting that the relief asked for be granted if plaintiffs are found entitled to it and if not that their petition be denied.
Passing plaintiffs’ various objections against the validity of the orders approving the bond to stay proceedings and for extension of time, because not in compliance with statutory requirements relative to appeals in chancery, we find in defendants’ return to order to show cause that “answering paragraph two of relators’ petition, this respondent admits the allegations therein contained to be true.” Paragraph two of relators’ petition is as follows:
“Second: That the said defendants have satisfied the said decree and complied with its terms completely and fully by paying into the county clerk’s office for Wayne county the exact amount of money payable under such decree, turning over to said county clerk’s office all of the notes which in said decree was ordered turned over to the county clerk’s office and by paying the plaintiffs’ tax bill of costs in the amount of $109.40.”
By like answer to paragraph nine of relator’s petition respondent admits as true the allegation “That the said decree was fully complied with by the defendants and that there was nothing to appeal from.” On this record we find those admissions true in fact and law. When defendants paid the amount of the judgment to and deposited the notes with the clerk they had fully complied with all requirements of the decree. All the decree imposed and all plaintiffs asked was return of the money they had paid, with interest, surrender of their notes, and costs. The decree was final and appealable. Its provisions for paying the determined amount to the clerk and by him to plaintiffs was not an interlocutory order for a deposit of funds in charge of an officer of the court for safe keeping pending litigation. It but amounted to a prescribed method by which defendants could readily satisfy all requirements of the decree to the exclusion of any further proceedings against them for its enforcement. The court could not and did not make such payment a condition precedent to appeal. Satisfaction of the decree was voluntary. Defendants’ statutory right to appeal for review of all its provisions yet remained in full force. By perfecting their appeal and giving a proper bond as the statute authorized, conditional on performance of the decree if affirmed, they would have stayed all proceedings to enforce any of its provisions until final adjudication of the ease on their appeal. While that right yet remained to them they elected to pay the adjudicated amount and comply with all other requirements of the decree, including payment of costs. Why they chose to pursue that course is left to conjecture, as no brief has been filed here in their behalf.
The decree in effect makes payment of the money to the clerk payment to plaintiffs, only imposing on him the ministerial duty of paying it over to them when they present him an authenticated copy of the decree. His failure to comply with its mandate does not change plaintiffs’ rights under the decree. Neither could defendant herein, who took no part in the hearing of the case, do so on an ex post facto application for extension of time and approval of stay bond, especially when it appears under the undisputed facts that said decree “was fully complied with by the defendants and there was nothing left to appeal from.”
Plaintiffs are entitled to the relief asked, and if necessary writ may issue accordingly.
McDonald, C. J., and Clark, Bird, Sharpe, Moore, Fellows, and WIEST, JJ., concurred. | [
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Fellows, J.
Plaintiff is the guardian of the two minor children of Blanche Burke, who was an employee of defendant Michigan Home and Training School, a State institution located at Lapeer, which will hereafter be referred to as the institution. Mrs. Burke was employed in the mangle room of the laundry. The laundry closed Saturday noon and invariably Mrs. Burke had a half holiday Saturday afternoons. Her children were at plaintiff’s home and it was her custom to visit them each Saturday afternoon. Frequently her brother-in-law, Mr. Burke, took her there in his machine; plaintiff also took her there in his machine, and at other times she walked. Saturday afternoon, July 26, 1924, Mrs. Burke had her usual half holiday. In the afternoon of that day her dead body was discovered in the bushes by the side of the highway usually traveled by her to plaintiff’s residence and some distance, at least a quarter of a mile, from the institution grounds. An examination disclosed there had been no criminal assault. A few days afterwards, one of the inmates of the institution confessed to the murder.
Defendants insist that the death of Mrs. Burke did not arise out of or in the course of her employment. Other points are also raised, but we need not consider them as it is clear upon this record that her unfortunate death did not occur in the course of her employment. She had finished her work for the week, had left the premises of her employer and was at least a quarter of a mile away; she was in the performance of no duty to her employer but upon a mission entirely of her own; she was mistress of her own time and could go and come as she pleased. We have followed and quoted the rule laid down by the supreme court of Massachusetts in McNicol’s Case, 215 Mass. 497 (102 N. E. 697, L. R. A. 1916A, 306). We quote from that case:
“It is sufficient to say that an injury is received ‘in the course of’ the employment when it comes while the workman is doing the duty which he is employed to perform. It ‘arises out of’ the employment, when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed, and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises ‘out of' the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.”
In Lipinski v. Sutton Sales Co., 220 Mich. 647, this court said:
“An examination of the cases where the accident was upon the street and liability was sustained will disclose that in each case the employee was at the time of the accident in the discharge of his duties to the employer and the accident arose out of the discharge of such duties.”
In Morey v. City of Battle Creek, 229 Mich. 650, Mr. Justice Bird, speaking for the court, said:
“Applying this rule as construed by the court, was Kleagle, when killed, within the zone of the compensation law ? _ Kleagle had been dismissed for the day. He was on his way home, or to the Avery barn. When injured he had left the vicinity of the work and was three-quarters of a mile distant. After he left his work he_ was no longer under the direction or control of the city. He was on no errand for the city, and was as much beyond the jurisdiction of the city when killed as though he had been ten miles away. We think, under no reasonable consideration of the conceded facts, can it be said the accident arose out of and in the course of his employment.”
See, also, Hills v. Blair, 182 Mich. 20; Guastelo v. Railroad Co., 194 Mich. 382 (L. R. A. 1917D, 69); Zoltowski v. Ternes Coal & Lumber Co., 214 Mich. 231; Sichterman v. Kent Storage Co., 217 Mich. 364 (20 A. L. R. 309); Ballman v. D’Arcy Spring Co., 221 Mich. 582; Reed v. Bliss & Van Auken Lumber Co., 225 Mich. 164.
The death of Mrs. Burke occurred under deplorable circumstances, but did not occur in the course of her employment, and unless it so occurred her employer is not liable under the workmen’s compensation act. The award must be vacated.
McDonald, C. J., and Clark, Bird, Sharpe, Steere, and Wiest, JJ., concurred. Moore, J., did not sit. | [
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Bird, J.
Defendants Frank and Edith Hughes were residents of Flint, and were the owners of a grist mill situate at South Whitley, Indiana. They placed it for sale in the hands of defendants Benjamin, who were real estate brokers. The Benjamins sold the mill to plaintiffs, taking residence property in Flint in payment therefor. Plaintiffs moved to South Whitley, and took charge of the mill, and have since operated it. After taking possession of the mill Sutton claims he learned that the Benjamins had misrepresented the value, extent and condition of the mill property, and he brought this action at law to recover his damages. A jury trial resulted in a verdict in his favor of $6,000 against defendants Benjamin. The jury returned a verdict of “no cause” against defendants Hughes.
1. The principal ground of complaint is that the trial court was in error in submitting the case to the jury. It is the claim of defendants that no case was made for the jury. This necessitates an examination, to some extent, of the testimony. The plaintiffs testified that defendant J. Judson Benjamin made the following representations to them concerning the property:
“Q. You may tell the court and jury what was said upon that occasion when Mr. J. Judson Benjamin, your husband, and yourself were present in his office.
“A. Mr. Benjamin said he had this mill property, was a splendid trade for us, and that it was worth, the mill was worth at least $20,000, and that the machinery was in a splendid running condition, belts and engine, boilers, everything in first-class condition, and that the mill property, the land extended back to the river. He also said that the taxes were all paid up to date, and that the insurance was paid up to date, and he said that the grinding business was $36 per day. He said there were no other place in town where they ground feed — and that there was an incumbrance of $9,000 against the mill, and it was held by the Farmers State Bank of South Whitley, Indiana.”
Benjamin’s representations as to the value of the mill should be regarded as mere expressions of. opinion. People v. Jacobs, 35 Mich. 36. Especially is this so since plaintiff had the opportunity to, and did inspect the property before purchase. Representations of value are usually regarded as matters of opinion. See 35 L. R. A. 418, note, subd. 5. Although statements of value, when the purchaser has "had no opportunity to examine the property, have been held to be statements of fact. Pinch v. Hotaling, 142 Mich. 521. Representations of value have also been held statements of fact under circumstances where the seller had peculiar knowledge of the property and its uses, and the purchaser was without knowledge. Kefuss v. Whitley, 220 Mich. 67. But the other statements made by Benjamin must be regarded as statements of existing facts, and, if untrue, are actionable. The testimony tended to show that the belts and engine were not in good condition; that the taxes were not paid up to date; that the income was not $36 per day, but was only about $5.27, and that the land did not extend back to the river, and that there were two other places in South Whitley that ground feed. But counsel say that Mr. Sutton and his wife went down and looked the mill over before closing the deal. It is true, they did, but they were there only a very brief time. Mr. Sutton knew nothing about a grist mill, and so informed Mr. Benjamin before he went there. It could hardly be expected that Mr. Sutton would, or could, verify the truth of all these statements in the short time he was in South Whitley. The question as to whether Mr. Benjamin made these statements, and if he did, the effect of them upon the plaintiffs, were questions of fact for the jury.
2. The court charged the jury:
“I charge you, gentlemen, if you find in favor of the plaintiffs, you will find against whom you find your verdict, whether against one or more than one. If more than one, you will bring in a verdict of whom your judgment will be against, whether against Benjamin, the man who made the representations, or Benjamin and son, whatever his name is, or whether Mr. Hughes and his wife, if you find testimony in the case which fixes liability on those other parties. You will have to do that from the testimony in the case.”
It is claimed that this instruction was erroneous because misleading. Counsel’s conclusion is based upon Bartholomew v. Welch, 191 Mich. 252. Plaintiffs’ counsel distinguish the cases on the ground that in the Welch Case the agent who made the false representation upon which the case was predicated was discharged and the principal held, while in the case at bar the jury returned a verdict of no cause of action against the principals, Hughes, who are not shown by the evidence.to have authorized the misrepresentation, and rehdered a verdict against the brokers who made the representations. We think this distinction is well taken. In the Welch Case the agent made the misrepresentation and the principal could be held only because of the agent’s misrepresentations. When the jury acquitted the agent there was no basis upon which the principal could be held. This clearly made the verdict inconsistent. In the present case the party who made the misrepresentations was found guilty and the principal, who neither made the representations nor had knowledge of them, was acquitted. The distinction rests upon reason and the verdict was consistent in fact.
3. The final claim is that the verdict is excessive. In this connection it may be well to state the exact terms of the trade. The plaintiffs conveyed to defendant two residence properties in the city of Flint, which they valued at the sum of $17,000. Upon these properties there were two mortgages aggregating the sum of $5,360, leaving an aggregate equity in the properties of $11,640. In return for these properties the plaintiffs received the mill with a mortgage thereon of $9,000. The mill was shown to be fairly worth $4,500. In addition to this plaintiffs received $5,000 in cash.
It is defendants’ claim that the testimony shows plaintiffs’ equities were worth $8,640. That under these circumstances they lost the difference between that sum and the $5,000 in cash they received, which would be $3,640, and as the verdict was for.$6,000 it was excessive. It is the claim of plaintiffs that their real estate was worth $11,640, over and above the mortgages. The plaintiffs’ damages were this sum less the $5,000 which they received in cash, which would be $6,400, and, therefore, a judgment for $6,000 was not excessive. Upon the question of damages neither party counted the mill as worth anything, as it was shown to be mortgaged for more than its value. The question of the value of plaintiffs’ real estate was for the jury. They gave plaintiffs a verdict for $6,000. They must, therefore, have found in accordance with plaintiffs’ contention.
The judgment of the trial court is affirmed.
McDonald, C. J., and Clark, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Wiest, J.
(dissenting). Milton Dean, a lineman in the employ of the Benton Harbor-St. Joe. Railway & Light Company, died, while working on a pole, amid wires carrying electric current. Certiorari to the department of labor and industry presents the question of whether there was any evidence in support of the finding that his death was occasioned by an accident arising out of and in the course of his employment. An examination of his body disclosed no burn or other evidence of electric contact, and an autopsy showed the immediate cause of death to have been a ruptured aneurism of a pulmonary artery, the artery having become thickened, indurated and scleroted. The rupture was the size of an ordinary lead pencil and caused almost instant death. The case was presented to the commission on the theory that Mr. Dean received an electric shock, which stimulated his heart action, with consequent increased blood pressure in the artery, resulting in the rupture. About an hour before his death Mr. Dean assisted in raising a pole, weighing 500 or 600 pounds, and for a space of a minute or two the weight of one end rested upon his shoulder. No apparent discomfort was occasioned by this incident.
The commission stated in the findings:
“With no direct evidence before the commission that this man received an electrical shock which resulted in the bursting of the diseased artery, can the commission say from all the surrounding facts in the case and the evidence presented that an electric shock was received by decedent? The electric current is invisible and the indications of shock to a body not always satisfactory, so far as direct evidence goes. In this case the applicants’ decedent climbed the pole, had been doing heavy work, was surrounded by wires carrying a voltage sufficient to cause death, it was possible for an electric shock to cause death without leaving any visible marks and we think the only reasonable conclusion that can be arrived at is that deceased lifted a heavy pole and so over-exerted himself that it increased the tension of his blood vessels and with the exertion of climbing this pole, which was not an accident, was in such a condition that when he received an electric shock it caused a rupture of the aneurism in his pulmonary artery and resulted in his death. While the electric current cannot be seen passing from the wire to the body the stage was all set for what we believe happened, the sustaining of an electric shock by deceased.”
It is insisted the commission in the findings indulged in mere surmise or guess and had no facts from which any such inference could legitimately be drawn. An injury to be accidental must be identified with a definite occurrence. The evidence falls short of showing any accident. Mr. Dean was suffering from a diseased condition of an artery. If he received an electric shock, stimulating his heart action, and this brought increased pressure, causing rupture of the artery, then he met with an accident. But did he receive an electric shock? Decision turns upon this question of fact. The commission found, by inference from known facts, that he did receive an electric shock, so we narrow to the question of whether the inference drawn was legally permissible from the facts most favorable to plaintiff. The exertion in holding a pole about an hour before he died was not a cause of his death, and so established conclusively by the medical testimony. No claim is made that any exertion in his work at the time of his death caused the artery to rupture. There is no direct evidence that Ke received an electric shock. It is true he was working near wires, where, had he touched two at the same time, he might have received an electric shock, but there is no evidence that he so came into contact with wires.
It is clear that he was not killed by an electric shock; in fact, such is not the claim. The claim is more in the nature of confession and avoidance; confession of death from a ruptured artery, and avoidance of the natural conclusion from such known cause, by claim of an electric shock sufficient to have stimulated the heart action with consequent increased pressure of blood in the artery with resultant rupture.
What killed Mr. Dean? A ruptured artery. What caused the rupture? A diseased condition of the artery. Was a shock necessary to occasion the rupture? No, it might have happened any moment, without shock or strain. Was the rupture accelerated by an electric shock? Nobody knows. May it be inferred there was an electric shock and then further inferred, upon the first inference, that the shock hastened the fatal culmination of the disease of the artery?
The absence of electric burns, while not conclusive of no electric shock, militates against the inference that he did receive an electric shock. Byerly v. Consolidated Light, Power & Ice Co., 130 Mo. App. 593 (109 S. W. 1065). It is just as consistent with probability to infer, guess or speculate, that the death of Mr. Dean was occasioned by the ruptured artery without an electric shock as with such a shock; for it might as well have happened without a shock as with one. To find there was an electric shock requires piecing out the known facts with mere conjecture or supposition, wholly unnecessary, under the known facts, to locate the cause of death. We know the cause of his death; we know an electric shock was not necessary to cause rupture of the diseased artery; we do not know that he received an electric shock, and we are barred, as was the commission, from drawing the inference of death occasioned by an electric shock, because under the evidence most favorable to plaintiff it is just as consistent to draw the inference that his death was but the culmination of his disease.
See Ginsberg v. Burroughs Adding Machine Co., 204 Mich. 130, and cases there cited.
In Sanderson’s Case, 224 Mass. 558 (113 N. E. 355), death was occasioned by hemorrhage in the lateral and the third and fourth ventricles of the brain. Deceased was driving along a country highway, with horse and wagon, and was found unconscious in the road with a cut over the right eye extending through the scalp to the skull, causing a slight hemorrhage from the periosteum, and there was a contused surface around the cut for about three inches. Reviewing and reversing an award, the court stated:
“The dependent must go further than simply to show a state of facts which is as equally consistent with no right to compensation as it is with such right. They can no more prevail if factors necessary to support the claim are left to surmise, conjecture, guess or speculation, than can a plaintiff in the ordinary action in tort or contract. * * * While there was ample evidence from which it could have been found that, so far as could be ascertained, the employee was in a normal and healthy condition, without any impairment of his arteries, or disease of any of the organ's of his body, and that it was unusual for a man of his age to suffer a cerebral hemorrhage unaccompanied by some physical injury, still there seems to be an entire absence of evidence to show that the hemorrhage was caused by the fall from the wagon.”
In Welsch v. Charles Frusch Light & Power Co., 197 Iowa, 1012 (193 N. W. 427), cited by the commission, there was evidence of electric burns and no other cause of death appeared. The fact of no other cause of death than by electricity appears in all the cases authorizing an inference of death by electricity. This is made plain in Curtis, Law of Electricity, § 618, quoted from in the Iowa case, and is illuminated by the cases cited by Mr. Curtis in support of his text.
To sustain an award, a personal injury, arising out of and in the course of the employment, must be established by direct evidence or the existence of , circumstances justifying the inference that the injury was occasioned by an accident, and exclude an equally consistent idea that it was not so caused. The direct evidence established a causal connection between the disease and death. The commission to justify an award had to find an ultimate fact, in this instance not susceptible of direct proof. This however accorded the commission no right to make an arbitrary choice between equally probable but unproved conclusions. If this were permissible, it would require the defendant, in order to prevent the commission from making it the victim of conjecture, assume the burden of showing there was no electric shock experienced by the deceased. The ultimate inference drawn by the commission rests upon no support beyond inference that some extra exertion of the heart increased the blood pressure in the artery. The rupture was rendered imminent by the diseased condition of the artery, and needed no pressure, resulting from stimulation, to break open, might have occurred while Mr. Dean was about ordinary work, or even in bed at rest, and in fact did break while he was in the act of drawing two small bolts up with a rope. The inference that the rupture was occasioned by an electric shock offends against the rule forbidding an inference to be based on an inference. The law will not admit of such a method of determining issues in a proceeding governed by rules of evidence. ' The known facts in the case do not legitimately admit of the finding of the commission.
The award should be vacated.
Clark and Fellows, JJ., concurred with Wiest, J.
Sharpe, J.
There is proof in the record which justified the commission in finding:
1. That Dean’s death was caused by the rupture of an artery in his body a few inches from his heart.
2. ' That prior thereto he had been afflicted with arterio-sclerosis, with lime deposit through the coats of the artery; in other words, what is commonly spoken of as a hardened condition of the arteries. Blood vessels in this condition are “more liable to rupture.”
8. That the exertion to which he was subjected a short time before his death by lifting the heavy pole would tend to weaken the wall of the artery and render it more liable to burst open. The rupture “generally takes place at the time of the exertion,” and, ordinarily, is due to increased tension in the blood vessels. A slight electric shock would produce such tension.
4. A few seconds before his death, deceased, while working on the pole, had his right foot about 3% inches from the feed wire, carrying 500 volts, and his left hip was about 5 inches from another wire, carrying 2,300 volts. He was then pulling up lug screws on a line. This would necessitate some movement of his arms, if not of his entire body, but little exertion.
5. While so engaged, and when the head of the witness' Baum, who had been working above him on the pole and was passing him on the way down, got “even with his feet,” Baum noticed that “he quit pulling up the hand line,” and, looking up, saw “his head coming down just as I looked.” While he did not see that any part of the body of deceased came in contact with the wires, it is apparent that he was not looking at him at the time deceased collapsed. A witness who observed deceased immediately after his collapse testified:
“Well, he had his feet on the first lower cross-arm, his right leg was over this large feed wire and spread like that (indicating) on each side of the pole and his right foot over the feed wire on the outside of it. Belt was above the second cross-arm and he was hanging down there supported by another man by the shoulders.
“Q. Were his shoes or his leg touching the feed wire?
“A. Lay right on the feed wire.”
6. That deceased might have received a shock from these wires without the contact leaving any visible marks upon his person.
7. At the time of his death deceased was 41 years of age, had never complained of heart trouble, and was apparently in the enjoyment of good health.
This proof and the inferences that may fairly and reasonably be drawn therefrom, in my opinion, sustain the finding of the commission that the bursting of the blood vessel was caused by an electric shock. The two doctors present when the post-mortem was performed and the one who performed it saw no visible signs of an electric shock. With the care with which experienced surgeons usually weigh their words when testifying as experts, they were unwilling to express an opinion as to the immediate cause of the bursting of the blood vessel, while admitting that a shock might have caused it. The condition in which they found the artery led them to say that the rupture might have resulted without any shock. I think their testimony goes no further than to say that a person with arteries such as deceased had might have collapsed at any moment without any other apparent reason therefor. In such a case, we can but weigh the probabilities. The deceased met his death while working in close proximity to electric wires, contact with which ordinarily would produce death. In view of his ability to stand the strain of lifting the heavy pole, his act in climbing the pole on which he was working, which required much exertion, the character of the work he was doing, simply pulling up a rope with no particular weight attached to it, all without complaint on his part, it cannot well be said as a matter of law that his collapse was due to his physical condition. Had the facts here presented been submitted in the trial of an action at law, I am impressed that we would say it should have been the duty of the court to submit to the jury the question as to whether the bursting of the artery was caused by an electric shock.
“A presumption is a negative or affirmative inference as to the existence of a fact which probable reasoning and common sense draw from proved surrounding facts and circumstances.” Kimber v. Consumers Power Co., 229 Mich. 663, 669.
The proof is clear that an electric shock would cause the rupture of the blood vessel. If an inference may fairly and reasonably be drawn from the proofs that the deceased received such a shock, to hold that it was the immediate cause of his death is not permitting an inference on an inference. If he received the shock, the cause of death is accounted for without inference.
The award is affirmed.
McDonald, C. J., and Bird, Moore, and Steere, JJ., concurred with Sharpe, J. | [
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Clark, J.
On certiorari it is urged that there is no evidence of an accident arising out of and in the course of the employment and that therefore the award in favor of the dependent of the deceased employee should be vacated.
Defendant employer laid off the employee on December 10, 1923. He returned January 2, 1924, and worked that day, his last in the employment. While there is confusion as to time, it must be held that, in view of the fact that employee worked but one day in January, there is evidence tending to show that prior to January 2d the employee was not lame, that on returning from his .work on January 2d, he was lame, a great toe was bruised, discolored, the skin broken. Testimony of statements made by the employee to his landlady, Mrs. Holmes, that night, hours after the claimed accident, and to a physician, Dr. Lee, days afterward, respecting his injury, is inadmissible, being hearsay.
The case turns on whether the testimony of a fellow employee, Linsey, of an occurrence which the evidence tends to show was on the last day of employment, January 2d, is admissible as a part of the res gesta?.
We quote from the finding of the department:
“ ‘Q. Was he working in the same department you was?
“‘A. Yes, sir.
" ‘Q- Did you see him there at work?
“‘A. Yes, sir.
“ ‘Q. Now, witness, did you know oí Mr. Bunker having some injury there over at the factory?
“ ‘A. Yes, I seen him go downstairs with a load of wheels, took a load of wheels and unloaded them and brought back some wheels. He said he hurt his toe. * * *
“ ‘A. What he said is all I know. * * *
“ ‘A. He said he dropped a wheel on his toe. * * *
“ ‘Q. What else did he say, Mr. Linsey?
“ ‘A. About what?
“‘Q. About his accident?
‘“A. He said it hurt him like the devil, as near as I can remember it. He said he guessed he would go over in the corner and take his shoe off and he did that and it was busted open, he said, he guessed, and put on his shoe and went to working.
“ ‘Q. He told you his toes were busted open?
“ ‘A. Yes, sir.
“ ‘Q. Did you see him when he sat down and took off his shoe?
“ ‘A. I seen him go off in the corner. He was about as far from here to that corner, seen him take his shoe off.
“ ‘Q. You didn’t see his foot?
“ ‘A. No, sir.’
“On cross-examination Linsey testified that he did not know how long before it was that deceased had dropped the wheel on his toe, and stated:
“ ‘Q. He went downstairs some time during the day?
“ ‘A. It was done some time during the day and I don’t know what time it was. Ain’t going to try and tell. * * *
“ ‘Q. After he left you, that is, you don’t know where he went?
“ ‘A. Only as I know where he had to go. * * *
“ ‘Q. In loading these wheels and taking them down and making the return trip how long does that usually take?
“ ‘A. I' don’t know, as he says he may go somewhere/ else. A man can go down there and back and unload a load of wheels in fifteen minutes if nothing bothers. I know we ain’t got a load of wheels up in half a day when the elevator didn’t run. « * *
“ ‘A. I might have told him that. I don’t know, I probably did. I wouldn’t say I did or didn’t. As I said before he can make a trip in thirteen minutes. I have done it.”
“Respondents claim that Mr. Linsey’s testimony is inadmissible. Applicant offers this testimony as part of the res gestas. In Guyer v. Equitable Gas Co., 279 Pa. 5 (123 Atl. 590), the supreme court of Pennsylvania said:
“ ‘It is urged for appellant that there is no competent evidence to support the finding that the deceased sustained an accident in the course of his employment. Mr. Guyer left hisi home in his usual health on the morning of October 27, 1921, to perform his duty as a meter reader, and in doing so entered the home of a Mrs. Sillman, in Tarentum, looking pale and saying he had just slipped and hurt himself, pointing to his back. On returning home that evening, he stated he had hurt his back and leg by falling or skidding on some cellar stairs, and the next day repeated the same to the family doctor. * * *
“ ‘The statement made to Mrs. Sillman, however, rests upon a different basis; the deceased was then pale and declared he had just sustained an accident. That declaration was apparently spontaneous and so connected with the accident itself as to be a part of the res gestee and as such competent evidence. It is not necessary that the declaration be made on the exact place of the occurrence. 22 C. J. p. 458. Statements by a person, on going downstairs, as to what had just occurred upstairs, or on entering a house as to what had just occurred outside, would be part of the res gestee. In either ease the declaration would be an undesigned incident of the occurrence and not the recital of a past event.’
“The testimony in the instant case is very similar in many respects to the fact stated in the above quoted case. The testimony of Mrs. Holmes is to the effect that when deceased left her house in the morning he was all right and in his usual health. Sometime during the day he complained that he had dropped a wheel on his toe and went over in the corner and removed his shoe and stated he had burst his toe open. He had just come upstairs and the fact that he took off his shoe at that time to examine his foot would indicate that the accident had happened but recently. When he returned home that night he limped and Mrs. Holmes saw the injured foot and treated it. Mrs. Holmes testified:
“ ‘Q. Do you know of him — did he ever complain to you about an injury?
“ ‘A. I took care of his toe. * * *
“ ‘A. I took care of the sore toe. It was his big toe.
“ ‘P. When was your attention first called to this sore toe?
“ ‘A. One evening when he came home he was limping and naturally he complained. * * *
“ ‘p. Now what time was it on that day when he came home?
“ ‘A. Supper time.
“ ‘P. About the time he usually arrives from his work?
“‘A. Just about the same time.
“ ‘P. What did he do?
“ ‘A. Took off his shoe. Bathed his foot in hot water and salt and I bandaged it for him.
“ ‘P. Go on now and describe the condition his foot was in. * * *
“ ‘A. I bathed his toe and his toe was black and near the top of the nail was a little small opening. I did it up and later a day or so, he seemed to be limping around and took off his shoe and I put an antiphlogistin poultice on it and then he went away. When he went he had his shoe cut so as to give his toe plenty of room and that was really all I know about it.
“ ‘Q. Do you know whether he went to work again or not?
“ ‘A. I couldn’t say.
“ ‘Q. Now did you observe any bruises upon his foot?
“ ‘A. It was black, his toe not his foot, his toe was black.
“ ‘Q. Did he tell you how it happened?
“‘Mr. Ward: Just yes or no.
“ ‘A. Yes, sir.
“ ‘Q. Now that morning when he went away and went to work he apparently at that time was he suffering from any trouble with his foot?
“ ‘A. No, sir.’
“Several days later when he visited Dr. Lee at Lowell the doctor found the same condition.. Taking all these facts together we think it has been fairly established by competent testimony to the mind of any reasonable person the only legitimate inference that can be drawn is that deceased did receive an accidental personal injury arising out of and in the course of his employment with respondent employer.” * * *
We think Linsey’s testimony was admissible as a part of the res gestee as stated by the department.
See, also, Gilbert v. Railroad Co., 161 Mich. 73; 42 L. R. A. (N. S.) 953, note; 19 L. R. A. 749, note.
That the employee may have been predisposed because of disease to gangrene and blood poisoning, which ensued, has nothing to do with the question of whether what befell him is to be regarded as an accident. St. Clair v. A. H. Meyer Music House, 211 Mich. 285.
The finding of the department having evidential support is conclusive on this court.
The award is affirmed.
McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred. | [
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Bushnell, J.
Plaintiff Harold F. Postma, who is in the sand and gravel business in the Grand Rapids area, filed a bill of complaint in which he sought a permanent injunction restraining defendants from picketing his place of business. The intervening plaintiffs are the employees of Postma.
Defendant Union, Local No. 406, is affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America of the American Federation of Labor. The individual defendants are Mackey, an officer, and Dertien and. Switzer, members of the local. The Union does: not represent any of the Postma employees, although it has attempted to persuade them to become its members. It does, however, represent employees of other sand and gravel companies in the area.
In February of 1950, the Union had difficulty in negotiating new agreements with the Grand Rapids Gravel Company and other competitors of Postma. According to testimony, which was returned on a separate record, the negotiating companies stated that their reason for failing to reach an agreement with the Union was that they were unable to increase or even continue their prevailing wages because Postma was paying lower wages. The Union offered in' corroboration of this statement a pay stub of 1 of Postma’s employees showing wag.es of 82 cents per hour covering a period of 1 week in 1949, but without any indication of the nature of the employee’s work. Intervening plaintiffs testified that they were paid wages by Postma ranging from $1.45 to $1.65 per hour, and 1 of them testified that he was never paid less than $1 per hour even when he was first employed. The Union stated in its answer that the general wage rate in the area for similar work was $1.31 per hour.'
During negotiations with the Union the manager of the Grand Rapids Gravel Company called a meeting of all gravel producers in the area, which Postma attended. Kleiner, an attorney for the Union, was also present. Postma testified that Kleiner urged all the gravel companies to sign a blanket contract designating the Union as the bargaining agent for all employees. Postma admitted on cross-examination that Kleiner did not offer a contract to be signed at that time, and that the testimony regarding the contract was based upon a discussion which took place at the meeting after Kleiner had left the room.
During the .progress of the negotiations the employees of certain competing gravel producers' requested their Union officers to picket the Postma Company. Defendant Mackey,' the secretary-treasurer of defendant Union, testified that the purpose'of such a picket'line was:
“To let the general public know that we had a dispute; Postma Gravel Company was unfair, paying a lesser wage in the gravel industry, hoping that we would encourage people that were favorable of the Union operators to place their orders to a fair operator that was paying the higher standards of wages and working conditions that exist in this area.”
This testimony was stricken as immaterial. However, it was printed, in full in the record, together with a lengthy colloquy between court and counsel.
A picket line was established on August 3, 1950, and continued until August 8th, when Postma obtained a temporary restraining order. This picket line consisted of 2 men who walked either abreast or single file on the shoulder of the highway in front of the Postma property. They carried placards reading: “This company unfair to organized labor.” Mackey testified that the word “company” was intended to include the employees of Postma as well as the company, and not to mean that Postma was unfair to his own employees. The Union offered to change the wording of the sign if it was deemed inaccurate.
The trucks of Postma use the'shoulder of the highway in going from one part of Postma’s premises to another. It was claimed that the pickets hindered the ingress and egress of the trucks and required them to slow down. After the first day the pickets- sat in automobiles on which were displayed like signs, near the entrance to the Postma yard.
Postma uses bulk cement delivered to him by truck and which is purchased from various companies located in other parts of the State. The .cement truck drivers are not Postma’s employees; most of them are Union members and will not cross a picket line. When the Postma picket line was established, Local No. 406 notified other teamsters locals with whom the cement haulers had agreements, so they might avoid the expense of returning undelivered bulk cement. Cement is delivered to Postma by 5 separate trucking concerns. Postma testified that failure to receive bulk cement would paralyze his business. In September several gravel producers in the Grand Eapids area agreed to a wage increase, provided Postma and other competitors would pay the same rate.
Prior to the entry of a decree in which the defendants were permanently enjoined from picketing, the court said:
“Considering all the testimony in the case, the court is of the opinion that no labor dispute existed at the Postma plant; that there was no legitimate labor dispute objective in the establishing of the picket line at plaintiff’s place of business; that the defendants were seeking to accomplish an improper and illegal labor objective in picketing plaintiff company’s premises, and in cutting off its supply of cement. Plaintiffs are, therefore, entitled to the relief prayed in their bills of complaint.”
Defendants on appeal argue that the decree is a violation of their rights under the Thirteenth and Fourteenth Amendments of the Constitution of the United States; that it imposes involuntary servitude upon them, deprives them of freedom of speech and of property without due process of law. The propriety of this decree must be tested by a determination of whether there was a lawful labor dispute and whether the Union sought to achieve a lawful labor objective.
It is conceded that no dispute exists between Postma and his employees, but, rather, the dispute is between the Union and Postma and the Union and Postma’s employees.
It is not necessary that a dispute exist between an employer and his employees in order to permit peaceful picketing, because if the economic interests of other employees engaged in the same industry are affected, they may through their representatives publicize their grievances by peaceful picketing. Silkworth v. Local No. 575 of the American Federation of Labor, 309 Mich 746, 755; Standard Grocer Co. v. Local No. 406 of the American Federation of Labor, 321 Mich 276, 285; and authorities cited therein.
What was the objective of the defendants? The motive for picketing is always a question of fact, and here an exceedingly close one. We have, therefore, considered that excluded evidence returned in the separate record, which we deem relevant in order to determine the purpose and motives of the defendant Union and its officers. The Union claims:
“The picket line was to be placed to show the general public and like that through our method of advertising to the general public that there was an unfair condition, an unfair condition with Postma Gravel Company because they were paying beneath the rates at that time; * * * they [the employees of Postma company] were holding us back.”
This claim is supported by the testimony of defendant Mackey and the pay stub of one of Postma’s employees, as well as the contracts finally negotiated between the Union and Postma’s competitors.
“This objective, vis.,, the bettering of the working-conditions and wages of nonunion members in the industry, so as to remove the barrier to increased benefits to union members, we must deem to be a lawful labor objective, if not otherwise prohibited by law.” Standard Grocer Co. v. Local No. 406 of the American Federation of Labor, supra, 289.
Postma contends, however, that defendants’ claim is a mere sham and that they were attempting to force his employees to join the Union and force him to enter into a contract giving it sole bargaining rights.
There is little in the testimony to indicate that a publicizing of unfair wages and. working conditions at Postma company was the primary purpose of defendants’ picketing. The existence of such “un fair wages and working conditions” was not established to any degree of certainty. The only evidence regarding wages was Mackey’s testimony and the pay-roll stub of 1 employee. The only testimony regarding working conditions was that Postma’s employees had no guarantees as to the terms of their employment.
Even if such facts were proved, Mackey’s answers to the following questions indicate a different objective. He was asked:
“Mr. Mackey, even if all of the employees at the Postma Sand and Gfravel Company were getting at least or more than the uniform wage scale you have negotiated with the other 2 gravel companies, but if they still were not members of your Union would you consider your Union to-be in dispute with those employees?”
He replied: “Yes, sir.”
Mackey was asked on’ cross-examination:
“It is your contention that the only way that this dispute can ever be removed between your Union and Postma employees is for them- to join your Union, is that right ?”
He replied:
I believe that they should join our Union; that they have been getting the benefits that we have negotiated, so why .shouldn’t they join our Union.”
’According to Mackey, it would make no difference whether Postma ¡oaid as much or more than the uniform wage scale, because he stated that the only way to settle the dispute would be for Postma’s employees to join the Union. Defendants’ objective, therefore, was to force'Postma’s employees to become members of the Union.
In Harper v. Brennan, 311 Mich 489, and Standard Grocer Co. v. Local No. 406 of the American Fed eration of Labor, supra, the Court held (the writer of this opinion dissenting) that, under the provisions of the statute (CL 1948, § 423.17, as amended by PA 1949, No 230 [Stat Ann 1950 Rev § 17.454 (18)]) an attempt to force employees to become unionized either directly or indirectly through théir employer is not a lawful labor objective. Under the authorities cited, we are obliged to hold that the permanent injunction entered by the circuit court does not .violate any of the constitutional rights of the defendants.
The decree is affirmed, with costs to appellees.
Dethmers, Butzel, Carr, Sharpe, and Reid, JJ., concurred with Bushnell, J. .
Boyles, J., concurred in the result.
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Boyles, J.
Plaintiff sued the defendant, her former husband, in the circuit court for Wayne county to obtain a judgment for the amount awarded to her against the defendant in a decree for divorce in the State of Idaho. See CL 1948, § 552.121 (Stat Ann § 25.141). At the time of starting suit the plaintiff filed simultaneous affidavits for writs of attachment and garnishment, showing that the defendant was not, and had not been, a resident of Michigan for 3 months immediately prior. The writs were issued and the writ of attachment was returned not served. The writ of garnishment was served. The garnishee defendant filed a disclosure denying liability to the principal defendant. After the filing of a demand for personal examination of the garnishee defendant lie filed an amended disclosure alleging circumtances relied upon by him for claiming no liability to the principal defendant, and again denied liability.
The plaintiff filed a declaration and bill of particulars in the principal suit whereupon the principal defendant entered a general appearance by attorney, who gave notice of such appearance to the attorney for the plaintiff. Shortly afterward defendant’s attorney filed a motion to dismiss the cause and gave notice of hearing thereon. The. ground alleged for dismissal was that the funds in the possession of the garnishee defendant were exempt from and not subject to garnishment.
Circuit Judge Guy A. Miller heard and granted the motion, and entered an order dismissing the case. The plaintiff appeals.
The court erred in dismissing the case. The writ of attachment was a summons as well as an attachment.
“The writ [of attachment] is a summons as well as an attachment. When there is no personal service upon the defendant, and he does not appear in the suit, the proceeding is strictly in rem, and no property except that attached can be taken in execution. When the defendant has been personally served, or has appeared, the proceedings in the suit are to be the same in all respects as upon the return of a summons personally served in a suit commenced by summons.” Bower v. Town, 12 Mich 229.
See, also, John D. Gruber Co. v. Montcalm Circuit Judge, 183 Mich 477.
The entering of a general appearance by the principal defendant gives the court jurisdiction in personam. Jurisdiction of the principal suit in personam was conferred on the court by the entering of a general appearance by the defendant. CL 1948, § 626.19 (Stat Ann § 27.1779).
“A general appearance waives all questions of the service of process, and is equivalent to a personal service.” Hempel v. Bay Circuit Judge (syllabus), 222 Mich 553.
See, also, to the same effect, National Coal Co. v. Cincinnati Gas Coke, Coal & Mining Co., 168 Mich 195; Fisher v. Fisher, 224 Mich 147; Daines v. Tarabusi, 246 Mich 419; Republic Automobile Insurance Co. v. Maedel, 253 Mich 663; Ward v. Hunter Machinery Co., 263 Mich 445; Fraser v. Collier Construction Co., 305 Mich 1.
The court also erred in dismissing the garnishment suit before the principal case came to final conclusion. The issues in the garnishment suit should come before the court having jurisdiction of the principal case only after that case was decided. The procedure for joining issue, and final judgment in the garnishment suit, is plainly set forth in the statute. Those issues are not proper matters for decision on a motion to dismiss the. principal case wherein the court has jurisdiction in personam.
“The affidavit for the writ of garnishment shall be held and considered as a declaration by the plaintiff against the garnishee as defendant; # * * And thereupon a statutory issue shall be deemed framed for the .trial of the question of the garnishee’s liability to the plaintiff. At any time after final judgment against the defendant in the principal cause, judgment may be rendered against such garnishee defendant, on plaintiff’s motion to the court with such notice to the garnishee defendant as is provided by the rules of the court for the giving of notice of the hearing of motions: Provided, however, If such plaintiff or such garnishee defendant shall within 10 days after filing of such disclosure, answer, or statement, file with the clerk of such court a demand for trial of the cause, said cause shall stand for trial in the manner provided by this' act. A jury may be had on demand of either party.” CL 1948, § 628.11 (Stat Ann 1951 Cum Supp § 27.1865).
See, also, Hayes v. Ross, 236 Mich 208.
In .an opinion filed by him the circuit judge speculated on the effect which a change in the Idaho decree might have in the principal suit here involved, and referred to our recent decision in Sonenfeld v. Sonenfeld, 331 Mich 60, as his ground for considering such uncertainty. The effect of a change in the Idaho decree might, be a matter to be considered when the principal suit is heard; and the answer to the trial 'court’s confusion as to that matter may readily be found in the statute. See CL 1948, §§ 552.121-552.123 (Stat Ann §§ 25.141-25.143). The Sonenfeld Case, supra, which was a contempt proceeding for nonpayment of alimony, has no bearing on the question here for decision, namely, did the court err in dismissing this case.
The order dismissing the case is set aside and the case remanded for further appropriate proceedings in the principal suit; and, if judgment for plaintiff is entered therein, then for further proceedings or trial of the statutory issues involved in the garnishment suit.
Reversed and remanded. Costs to appellant.
Dethmers, Butzel, Carr, Bushnell, Sharpe, and Reid, JJ., concurred.
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Williams, J.
The narrow issue in this case is at what point has a prescribed written statement of satisfactory or unsatisfactory work been provided a probation teacher as required under the Teachers’ Tenure Act (MCLA 38.83; MSA 15.1983).
We adopt the facts as stated by the Court of Appeals:
"Plaintiff is a certified teacher, though blind. She was hired by defendant as a teacher for the 1966-1967 school year and rehired for the 1967-1968 school year. During both school years, plaintiff was on probationary status. The last day of the 1967-1968 school year was June 7, 1968, and the sixtieth day before the close of that school year was April 9, 1968.
"At a special meeting of defendant held April 3, 1968, the superintendent recommended that plaintiff be placed on a third year of probation because of unsatisfactory classroom discipline. For the same reason, the board voted to terminate her employment at the end of the 1967-1968 school year.
"April 8, 1968, the following letter was mailed to plaintiff by certified mail:
" 'Miss Evelyn Weckerly 3711 Henry Street, Apt. 113 Muskegon, Michigan 49441
" 'Dear Miss Weckerly:
" 'Under conditions and terms of the Michigan Tenure Act it is my responsibility to notify you that because of unsatisfactory work, your contract will riot be renewed.
" 'Yours truly,
/s/ Wm. A. Luyendyk, Superintendent’ ”
"The same day plaintiff’s principal told her that her contract would not be renewed and that she would be so advised by mail. April 9, 1968, a postal employee attempted delivery of the certified letter but plaintiff was at school. A mail-arrival notice was left in plaintiff’s mailbox. Plaintiff testified that she searched for the expected letter April 8, 9, 10 and 11, but that she found neither the letter nor the mail arrival notice until April 12th. [The correct date was April 11.] She actually received the letter April 13th and it was read to her.
"August 26, 1968, the State Tenure Commission ordered that plaintiff be returned to her employment by defendant as a tenure teacher. Defendant appealed to Ingham County Circuit Court which vacated the order of the commission.” 28 Mich App 243, 244-245 (1970).
On December 1, 1970, the Court of Appeals affirmed the decision of Honorable Jack W. Warren in Ingham County Circuit Court. Rehearing denied on January 13, 1971. On January 30, plaintiff and appellant filed application for leave to appeal. Leave was granted on March 14, 1972.
At what point the required written statement has been provided is a question of first impression in this Court. Previously this Court has ruled on other points relating to the "written statement”. We have held that if no written statement is provided, the statute requires it " 'shall be considered as conclusive evidence’ that the [teacher’s] work is satisfactory.” We have also held that if the written statement that a contract would not be renewed fails to state whether or not the teacher’s work had been satisfactory, the written statement does not meet statutory requirements. In short, we have interpreted this section of the Teachers’ Tenure Act quite literally in favor of the legislative purpose of protecting teachers’ rights.
The exact words of the statute are consequently important. They are:
"At least 60 days before the close of each school year the controlling board shall provide the probationary teacher with a definite written statement as to whether or not his work has been satisfactory. Failure to submit a written statement shall be considered as conclusive evidence that the teacher’s work is satisfactory. Any probationary teacher or teacher not on continuing contract shall be employed for the ensuing year unless notified in writing at least 60 days before the close of the school year that his services will be discontinued.” MCLA 38.83; MSA 15.1983. (Emphasis added.)
The operative sentence is the first and the key word is "provide”.
The first sentence is the critical one, because it is the one in which the Legislature prescribes what must be done. The second and third sentences merely describe the consequences if the prescribed action is not taken. Therefore the reference words "submit” and "notified” in the second and third sentences respectively are merely descriptive of the key word "provide”.
The common meaning of "provide” as found in Webster’s New Collegiate Dictionary is:
"1. To look out for in advance; to procure beforehand.
"2. To supply for use; afford; yield.
"3. To furnish; stock.”
While all three paragraphs describe some of the flavor intended by the Legislature, "[t]o supply for use” most nearly conveys what is here intended.
Applying this construction of the statute to the facts of the case, two things are immediately clear. First, the oral communication of the message in no way satisfies the literal requirements of the statute, viz. providing the written notice. Second, the postman’s leaving the notice of attempted delivery of the letter enclosing the written notice is not providing the written notice, which was returned to the post office.
Since the actual delivery of the letter to the teacher’s residence did not occur "60 days before the close of the school year”, the written statement was not provided or supplied for use on time.
The Court of Appeals is reversed and the order of the Tenure Commission is reinstated. No costs, a public question being involved.
T. M. Kavanagh, C. J., and Adams, T. E. Brennan, T. G. Kavanagh, and Swainson, JJ., concurred with Williams, J.
Black, J., did not sit in this case.
Wilson v Flint Board of Education, 361 Mich 691, 696 (1960).
This was the holding of the Court upon rehearing in Munro v Elk Rapids Schools, 385 Mich 618 (1971) at which time we adopted as the opinion of the Court the minority opinion of Justice T. G. Kavanagh, 383 Mich 661, 688 (1970).
This Court said in Rehberg v Ecorse Twp School District No 11, 330 Mich 541, 548 (1951):
"The tenure act places an additional safeguard upon the arbitrary or unreasonable dismissal of teachers and is designed for their protection.”
The date of the mailing is not controlling in satisfying the statutory requirement of providing written notice 60 days before the end of the school year. School District No 6 of Pima County v Barber, 85 Ariz 95; 332 P2d 496 (1958). | [
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Boyles, J.
This case involves the construction of a written contract whereby the plaintiff assigned to the defendants a one-half working interest in 3 oil and gas leases and the defendants agreed to drill test wells on each lease. In the agreement, plaintiff is designated as “Bolger” and the defendants as “Rose-Cline.” After a test well had been put down on each lease resulting in 3 “dry” holes, further drilling on the third lease brought in oil. Plaintiff claims that if the first well on each of the 3 leases was a nonproducer, the entire expense of these 3 dry wells was to be borne by the defendants. The defendants claim that under the written agreement the plaintiff is liable for half the cost of the test well on the third lease, to be deducted out of plaintiff’s share of the returns, if further drilling on the third lease brought in oil. As a matter of fact, further drilling on the third lease did bring in 2 producers and the defendants deducted from plaintiff’s share of the returns from these 2 producers, half of the cost of drilling the first (dry) hole on said third lease, amounting to $9,987.94.
Plaintiff brought the instant suit in the circuit court of Isabella county to recover the amount thus retained by the defendants. The case was submitted to the circuit judge on a stipulation of facts resulting in judgment for the plaintiff and the defendants appeal. The facts are not in dispute.
Plaintiff sold to the defendants a half interest in 3 separate leases, (1) in Cedar township, Osceola county, (2) in Rose Lake township, Osceola county, and (3) in Adams township, Arenac county. Paragraph No. 1 in the agreement reads as follows:
“(1) Considering each leasehold above described as separate projects, Bolger hereby assigns, with no reservations, a one-half working interest in the above described leasehold estates in toto. He also assigns a one-fourth working interest to Rose-Cline insofar as oil production is concerned, such assignment to be in full force and effect as long as one-half of the cost of drilling and operation remains unpaid, with each project considered a separate transaction insofar as the above leasehold estates are concerned, it being understood that Rose-Cline advance all costs of development and operation and Bolger shall pay one-half of said costs solely out of production in the particular lease involved and when, as and if said costs are liquidated, then the one-fourth of oil production hereby assigned reverts to Bolger along with the one-fourth ’ oil production already reserved by him and upon which Rose-Cline have no claim of lien or otherwise.”
Standing alone, the above paragraph plainly indicates that each leasehold is a separate project and that each project (i.e., each leasehold) is to be considered a separate transaction; also that Bolger was obligated to pay half of the cost of the drilling and operation, with each lease considered a separate transaction, out of any production of oil “in the particular lease involved.” But that provision must be read alongside of any later provisions, and all provisions of the contract construed together to determine whether paragraph 1 has been modified by later provisions.
Paragraphs 2 and 3 of the agreement specifically apply to the Cedar township lease. Paragraph 2 provides that if a nonproducer results from the test well, it shall be at the sole expense of Rose-Cline. Paragraph 3 provides that, on the contrary, if commercial production of oil is found, Rose-Cline could recover half the costs of such development and operation expense, out of the one-fourth oil production assigned to them by paragraph 1. We have no controversy here as to the Cedar township lease. The only-test there resulted in a dry hole and Rose-Cline stood all the expense. However, paragraphs 2 and 3 are important in construing the contract as an entirety, inasmuch as these paragraphs plainly modify and limit the general provisions in paragraph 1. Paragraph 2 eliminated the general liability of the plaintiff under paragraph 1, as to the dry test hole on the Cedar township lease. Under paragraph 2, if the test well on the. Cedar township lease proved to be a dry hole, Rose-Cline agreed to stand all the expense; under paragraph 3, if it was a producer, plaintiff agreed to stand half the costs, under paragraph 1.
The dispute arises over the third lease, in Adams township, Arenac county. Paragraph 4 states that defendants will commence a well on some part of the Adams lease within 30 days after Charles W. Teater completed a well, near there, as a commercial pro ducer. In the event of that happening, the defendants agreed to commence Adams I and drill a test well. The second sentence of paragraph 4 says:
“It is understood that this well (Adams I) will be drilled on exactly the same conditions as well number one (Cedar I) mentioned herein and that credits for the drilling costs of this well (Adams I) shall not be credited to Rose-Cline out of production from well number one (Cedar I), it being intended that each leasehold estate shall bear its cost, as far as Bolger is concerned, for any well drilled thereon.”
This paragraph plainly states that the Adams I well will be drilled on exactly the same conditions as the Cedar I well. That being true, we must conclude that the agreement contemplates that the first well drilled on the Adams lease would be drilled under the same conditions as are stipulated in paragraph 1, as modified by paragraphs 2 and 3, which taken together provide how the Cedar I well should be drilled.
The reasoning and conclusions announced by the trial judge in deciding the case are clear and concise, and we are in accord therewith. The trial court said :
“The Cedar I well is drilled at the ‘sole cost and expense’ of the defendant if dry (paragraph 2); nothing is said about getting this cost back out of later production from other wells on the Cedar lease. Production on later wells on this lease could not be used to pay back costs on Cedar I, because defendant drills the first well on this lease at his ‘sole cost and expense.’ The Adams I well being drilled on the same conditions as the Cedar I well; then the defendant agrees to drill Adams I, the first well on the lease, if a dry hole, at its sole cost and expense. If the defendant drills the first well at his sole cost and expense if dry, then he cannot recover one-half of the costs of this well from later production. He cannot do it on the Cedar lease, and neither can he do it on the Adams lease, because these leases are both drilled under ‘exactly the same conditions.’ The only way that one-half of the cost of Cedar I and Adams I could be charged back to plaintiff is to get production on Cedar I and Adams I. It cannot be taken out of later production on these leases because defendant agrees to drill the first well on the Cedar and the first well on the Adams lease at their sole cost and expense if dry. * * *
“According to our interpretation of this contract, if defendant pays for the Cedar I (dry hole), he should also pay for the Adams I (dry hole), because these two wells are both drilled ‘on exactly the same terms and conditions.’ Later development would not matter because plaintiff gets Cedar I and Adams I, if dry holes, at defendant’s sole cost and expense, because they are drilled on exactly the same terms and conditions.
“We think that paragraph 1 of this agreement, as modified and changed by paragraphs 2, 3 and 4, allows the plaintiff to obtain the benefit of one dry hole each on the Cedar and Adams lease without any cost to him.”'
It is quite apparent that a condition arose which was not in the contemplation of the parties when the agreement was made. We feel that the general intent of the parties was that each lease should be developed as a separate project, and that the defendants should bear the entire expense of a test well on each of the leases if the test well was not a producer. As consideration for the plaintiff parting with half of each lease, the defendants assumed the risk of the test well on each lease proving to be a dry hole. The plaintiff is entitled to have his leases tested by the defendants without cost to him, in consideration for his giving • defendants half of each lease in return for one test well on each lease, unless the test well produced oil.
The defendants have no right to withhold from plaintiff half of the cost of the first well on the Adams township lease. The judgment for plaintiff is affirmed.
Sharpe, C. J., and Bushnell, Beid, North, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Carr, J.
While in defendant’s employ on December 18,1944, plaintiff sustained an injury to his left hand. It is conceded that the injury arose out of and in the course of the employment. Compensation was paid by defendant at the rate of $21 per week for total disability from December 19, 1944, to January 29, 1945. Thereafter plaintiff was given light work by defendant, at which he received wages equal to what he was receiving prior to his injury. Payments for total disability were again made by defendant during the period between June 9, 1945, and July 7, 1945, following which plaintiff resumed his favored employment. Because of a reduction in his weekly earnings he petitioned for further compensation, and was awarded $8.80 per week for partial disability, from and after July 15, 1945, until the further order of the commission.
In September, 1946, defendant filed a petition to stop compensation. The deputy commissioner hearing the matter granted the petition, but the compensation commission of the department reversed the finding and awarded plaintiff compensation at the rate of $4.19 per week for partial disability, from July 22, 1946, until the further order of the commission. Defendant was allowed credit under such order, which was entered June 24, 1947, for compensation paid by it to plaintiff after July 22, 1946.
On August 19, 1947, plaintiff petitioned the department of labor and industry for an increase in compensation from the weekly rate specified in the order above mentioned to $21 per week for total disability. Such action was taken because plaintiff, on or about May 14th preceding the filing of such petition, suffered a recurrence of pulmonary tuberculosis with which he had previously been afflicted in 1939. He made no claim that the ailment which forced him to leave his favored employment with the defendant was in any manner related to the injury to his hand, and it was conceded that the condition of his hand had not changed since the previous adjudication of partial disability. The deputy commissioner who heard the petition denied plaintiff’s request for increased compensation and directed that the payments provided for in the order of June 24, 1947, should be continued. On appeal the compensation commission reversed the action of the deputy and allowed compensation to plaintiff at the rate of $21 per week for total disability from and after May 14, 1947, until the further order of the commission, with credit to defendant for compensation previously paid for partial disability. Defendant, on leave granted, has appealed.
It is the claim of the appellant that under the undisputed facts the compensation commission of the department of labor and industry was not authorized to award increased compensation to plaintiff. Emphasis is placed on the fact that plaintiff’s condition resulting from the injury had not changed since the prior hearing, at which partial disability was found and compensation awarded accordingly. It is undisputed that plaintiff might have continued at his favored employment except for the recurrence of his tuberculosis. It is insisted that the order from which defendant has appealed was based wholly on disability resulting from the disease rather than on an aggravation of plaintiff’s physical condition due to the injury, or on a loss or diminution of favored employment, and that the recurrence of plaintiff’s ailment did not constitute such a change in circumstances as justified the increase in compensation. In support of its contention appellant relies on Blust v. National Brewing Co., 285 Mich 103, and also on the rule recognized hy this Court in Webber v. Steiger Lumber Company, 322 Mich 675. See, also, McKay v. Jackson & Tindle, Inc., 268 Mich 452.
In its determination of the matter the compensation commission of the department relied on the decision of this Court in Sotomayor v. Ford Motor Company, 300 Mich 107. In that case the plaintiff sustained an injury to his right hand, resulting in a permanent condition. He was given favored employment by the defendant; and was awarded compensation for partial disability at the rate of $12.-80 per week. From such order no appeal was taken. Payments continued thereunder for approximately 14 months when the parties, with the approval of the department, entered into a supplemental agreement providing for the suspension of payments, subject to the provision that if further disability from the plaintiff’s injuries developed thereafter he should have the right to petition the department for further compensation. Approximately 3 years later plaintiff was found to be afflicted with leprosy and was removed to the leper colony at Carville, Louisiana. Subsequently he filed a petition for further compensation. On the hearing it developed that his physical condition, aside from the ailment with which he was afflicted, was approximately the same as at the time of the order of compensation for partial disability. Based on such showing the department awarded compensation at the same rate as did the prior order, indicating in its opinion that the previous award was a final determination with reference to plaintiff’s disability, at that time, resulting from his injury. On appeal the award was affirmed by an evenly divided.court. In its holding in the instant matter the compensation commission relied on the opinion of Justice Starr, who wrote for af firmance of the award. Read in the light of the situation under consideration, we do not think that such opinion may properly be construed as authority for the making of an award for total disability, under the factual situation established by the record in the case at bar. Apparently the department in the Sotomayor Case did not consider making an award for total disability, and there is nothing in the opinion of Justice Starr suggesting that such action would have been justified. Rather, the issue was whether the prior order of the department should be regarded as establishing Sotomayor’s right to compensation for the disability resulting from the injury. In his opinion, Justice Starr used the following significant language:
“The fact that plaintiff is confined in the leper colony by health authorities and is thereby prevented from working at 'favored employment’ does not defeat his right to compensation for his continuing hand injury. The liability to pay compensation for partial disability has been determined by the department of labor and industry and the supervening leprosy and resulting confinement does not relieve defendant from such adjudicated liability.”
In support of the conclusion indicated as to the effect of the prior adjudicated liability, the opinion cited Ward v. Heth Brothers, 212 Mich 180, 198, quoting from the opinion in that case as follows:
“ 'Counsel for plaintiff discuss the question whether the defendants are released from liability to pay compensation because of the supervening insanity of the plaintiff; and they urge in argument that after the liability to pay compensation has become fixed,' no supervening infirmity or insanity of plaintiff will relieve the employer or his insurer from the liability to continue paying compensation according to the terms of the award as originally made. And the following cases are cited: Eaves v. Blaenclydach Colliery Co., 2 KB [1909] 73; Harwood v. Wyken Colliery Co., 2 KB [1913] 158; McNally v. Furness, Withy & Co., 3 KB [1913] 605; Walsh’s Case, 227 Mass 341 (116 NE 496, 6 ALR 567).
“ ‘We doubt if defendants really claim that, simply, the intervening insanity would relieve them from liability. We understand their real position to be that the disability from which claimant has suffered since April 23,1919, was due to disease and not the injury of February 12, 1916. However, we are of the opinion that the position of plaintiff upon that subject is fully sustained by the authorities cited. In other words, that the supervening insanity of the plaintiff does not justify defendants in stopping payment of compensation.’ ”
Justice Boyles, who wrote for reversal in the Sotomayor Case, pointed 'out that in Ward v. Heth Brothers, supra, plaintiff was receiving compensation at the time his employment was terminated because of his insanity, and that the case was distinguishable on that ground. His opinion also called attention to the fact that if Sotomayor had not become a victim of leprosy he would have continued in his favored employment, and would not have been incapacitated from earning the wages that he had received therein.
In the case at bar appellant does not question the right of plaintiff to receive weekly compensation at the rate specified in the order of the commission entered June 24, 1947. Bather, its claim is that plaintiff Dunavant’s inability to work because of tuberculosis, hot connected in any way with the injury to plaintiff’s hand, is not such a change in circumstances as justifies the increasing of compensation over and above that fixed in the prior adjudication of the department. Such position is consistent with the holdings in Ward v. Heth Brothers, supra, and Neal v. Stuart Foundry Co., 250 Mich 46. Insofar as the Sotomayor Case is concerned, it cannot he said that the result therein, or either opinion filed in the case, supports the compensation commission in making the order in the case at bar.
In Pigue v. General Motors Corporation, 317 Mich 311, the plaintiff sustained an injury while in the defendant’s employ, for which he was paid compensation for certain periods when he was prevented by such injury from working’. Thereafter defendant employed him at clerical work. While so employed at wages equal to or greater than he received at the time of his injury, the labor union of which he was a member called a strike, as a result of which the plaintiff was unemployed for approximately 3 months. He sought compensation for such period on the ground that his injury had totally disabled him from doing the work in which he had been engaged prior to such injury. The department, citing the Sotomayor Case, supra, awarded compensation for total disability. On appeal this Court set aside the award, saying in part:
“The principle upon which compensation is awarded is, that the employee has suffered a loss in his wage-earning capacity as a result of a compensable injury suffered while in the employ of his employer. * * *
“In the case at bar plaintiff could have continued his employment under the same terms and conditions as existed prior to going out on strike. The incapacity of plaintiff to earn wages during this period was not occasioned by his previous injury, but by the intervention of a labor union of which he was a member. Employment for plaintiff was available under conditions existing prior to the strike. Plaintiff is thus in the position of having refused employment until those conditions were modified. Plaintiff’s employment did not cease by reason of any overt act upon the part of his employer or because of Ms inability to work by reason of Ms accidental injury.”
In the case at bar it must be said that plaintiff’s inability to work at the favored employment given him by defendant did not result “by reason of his accidental injury.” Neither was he prevented from continuing in such-.employment by any act on the part of the employer. As before noted, it is undisputed that plaintiff could have continued to work had it not been for the recurrence of pulmonary tuberculosis from which he had suffered at a prior time. Had favored employment not been available to him, a different situation would be presented. Coleman v. Whitehead & Kales Co., 268 Mich 412; Hood v. Wyandotte Oil & Fat Co., 272 Mich 190; Cundiff v. Chrysler Corp., 293 Mich 404.
Under the facts in the case at bar plaintiff is not entitled to an increase in compensation payments over and above the rate specified in the order of the department entered June 24, 1947. The order from which the defendant has appealed is vacated, with costs to defendant, and the case is remanded to the department of labor and industry for the entry of an order in accordance herewith.
Sharpe, C. J., and Bushnell, Boyles, Reid, North, and Dethmers, JJ., concurred.
Butzel, J., did not sit. | [
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Sharpe, C. J.
This is an appeal from an order of the circuit court of Saginaw county holding Charles Moore guilty of contempt.
The facts which enter into this proceeding are as follows: Upon the complaint of the prosecuting attorney of Saginaw county a one-man grand jury was held in Saginaw county before Hon. James E. O’Neill, circuit judge. On Saturday, February 14, 1948, the grand jury officials went to the Western Union office in the city of Saginaw to obtain information regarding the whereabouts of one “race horse ticker.” As a result of information obtained in the telegraph office, a subpoena duces tecum was issued over the signature of James E. O’Neill, circuit judge, directed to Charles Moore, defendant, 438 S. Weadock commanding him to appear “at forthwith noon, to testify and give evidence in the above matter now pending in said court.” The subpoena reads as follows :
“To Charles Moore, 438 S. Weadock
You are commanded, that laying aside all and singular your business and excuses, you be and appear before the Honorable James E. O’Neill, Judge of the 10th judicial circuit of Michigan, at Saginaw in the county of Saginaw, on the 14th day of February, A.D. 1948, at forthwith noon, to testify and give evidence in the above matter now pending in said court and that you bring with you and then and there produce all books, papers and records in your possession and under your control relating to the matter above referred to and particularly News Service ticker, teletype and all other equipment and instruments in connection therewith at or near 110 Fraser St Saginaw and in the name of H. P. Hise, Carl Framer, Henry Framer, any one or any combination thereof
“And for failure to attend and to produce said books, papers and records, you will be deemed guilty of contempt of court and suffer the penalties thereof in accordance with the statutes in such case made and provided.
“Witness, the Honorable James E. O’Neill, Circuit Judge, at Saginaw, on the 14th day of February A.D. 1948.
“Seal (signed) James E. O’Neill
James E. O’Neill, Circuit Judge.”
The subpoena was delivered to Charles Moore at his residence at 1:30 p.m., on the date above mentioned. After the subpoena was delivered, Charles Moore tried to call Judge O’Neill at the court house, but obtained no answer. He then drove to the court house, found the doors locked and failed to gain admission. He then returned to the Western Union office sometime after 2 p.m., and again tried to reach Judge O’Neill at the court house by telephone. On the following Monday, February 16, 1948, Charles Moore called the court house by phone, and was referred to the clerk’s office and by someone there to the assignment clerk who advised him to see Donald W. Gilbert, assistant attorney general, who in turn advised him to see Judge O’Neill. Charles Moore went directly to the court house, but was unable to see Judge O’Neill until after court on Monday.
On Tuesday, February 17, 1948, the original subpoena duces tecum was filed in the circuit court signed by William A. Wackerly certifying that he had served “the within subpoena upon the within named witnesses: Charles Moore, at 438 S. Weadock St., in the city of Saginaw, Michigan” at 1:20 p.m., on February 14, 1948. On February 17, 1948, an affidavit of William A. Wackerly was filed alleging that he was an investigator for the Michigan liquor control commission and assigned to the grand jury proceedings in the circuit court for the county of Saginaw; that he telephoned Charles Moore advising him that he had a subpoena for his appearance forthwith; that it was necessary for Charles Moore to furnish information and records as he might have concerning certain telegraphic equipment alleged to be located at 110 Fraser street in the city of Saginaw; that when he handed Charles Moore the subpoena, he advised him that it was necessary for him to appear forthwith and that failure to do so might put him in a position to be judged in contempt of court.
On the same day Donald W. Gilbert, assistant attorney general, filed a petition in the circuit court of Saginaw county for an order to be issued by said court to Charles Moore to show cause why he should not be punished for criminal contempt. On the same day an order to show cause was issued directed to Charles Moore to appear before the court on February 25, 1948, at 9:30 a.m., to show cause why'he should not be punished for criminal contempt. On the day above mentioned Charles Moore appeared and filed a motion to dismiss the petition and order for the following reasons:
“I
“That sections 17217 and 17218, Compiled Laws of 1929, which are sections 28.943 and 28.944 of Michigan Statutes Annotated, under which the one-man grand jury proceedings are conducted, are unconstitutional and void for the reason that they deprive the respondent of the due process of law guaranteed to all citizens by the Fourteenth Amendment to the Constitution of the United States.
“II
“That the subpoena served on the respondent did not designate any place that he was to appear.
“HI
“That there is no proof before the court of the service of the said subpoena on the said respondent as required by the statutes and the rules of court of the State of Michigan before a person can be cited for contempt.
“IV
“That the said respondent did obey the command of the said subpoena and did all that he knew it was possible to be done to obey the commands of said subpoena on Saturday afternoon, February 14,1948, and within one hour after the said subpoena was served on him, and the conduct of this respondent was that of a law-abiding, cooperative citizens subpoenaed to appear before a court of justice.
“V
“That the conduct of the respondent, Charles Moore, did not obstruct the grand jury proceedings.”
The trial court refused to pass upon the motion to dismiss the petition until certain testimony had been taken.
William A. Wackerly was sworn and testified:
“Q. Tell us what that conversation was.
“A. When I dialed the number, a male voice answered. I asked who was speaking and the other party said that it was Charles Moore. I identified myself as being an investigator for the Michigan liquor control commission and advised the party I had a subpoena on Western Union officials, requesting certain information in regard to a teletype ticker machine that we knew to be located at 110 Fraser street in the city of Saginaw and we wanted verification by Western Union’s records of the same. The party informed me that he worked out of the Chicago office, directly under the service superintendent, and he took no orders from anybody in the Saginaw area and was not responsible to anyone in the Saginaw area. I then advised’ him that my subpoena covered any Western Union employee or official. He then stated that he had no knowledge of the machine that I was inquiring about. I informed him that he did have knowledge because he was the service man who took care of the machine. The party then said, ‘AH I know is, it is somewhere on Fraser street. I know the house but I don’t know the number.’ I asked what block the house was located in and he said that it was either the 100 or 200 block. I asked him the location of the house in the particular block and he said it was in the middle of the block.
“I then asked for a description of the house and he said that it was a white house. He then said, ‘Why do you have to bring me into this V He then said, ‘I know all these boys.’ ‘The people at the city hall know where it is, why don’t yon ask them?’, he said. I informed him that at the present time we were not interested in anybody at the city hall, that we wanted information from the Western Union. He then asked me why he should have to come to the Western Union office. I told him it was because the Grand Juror, Honorable James E. O’Neill, was then on the way to the Western Union office to hold a session of grand jury. He said if he were to come there, somebody would have to pick him up because he had no car. I said that I would pick him up. I asked for a description of the house where he lived and he said that it was a green apartment house on the corner of South Weadock and Thompson streets. He also advised me not to pick him up for at least an hour because he still had his working clothes on and was not dressed. He also stated that if he was to appear as a witness before the grand jury that he was entitled to witness fees and would not appear unless he was paid. I advised him that that would be taken care of. This conversation all took place in the presence of Mr. Gilbert, assistant attorney general, and Mr. Ellison who was in the vicinity of the telephone.
“His response was made to me. I did the talking. I know that the subpoena was given to me by the assistant attorney general to serve on Mr. Moore and I was instructed by you (Mr. Gilbert) to serve Mr. Moore with a subpoena.
“Q. And then what did you do?
“A. At about 1:30 p.m. on the afternoon of February 14, 1948, at that time I went to the residence at 439 South Weadock, knocked at the door of an apartment there and a gentleman answered the door. I asked him if he was Charles Moore and he said that he was. He invited me into the house. I then told Mr. Moore who I was and that I had a subpoena to serve on him. I asked Mr. Moore if he could read and he said that he could. I presented to him the original subpoena and the copy of it and I said to read the original subpoena and return it to me and for Mm to keep.the copy. He read over the subpoena very thorougMy and handed the original back to me.
“When I say that I handed the original subpoena I was referring to people’s exhibit 1. When I entered the home there was a young man approximately 22 or 23 years old, dressed in an army jacket, in the same room we were in. I was not introduced to him although I did have some conversation with the young man. Charles Moore handed back the original subpoena to me.
“Q. And just tell us what other conversation there was, if any, what else happened there.
“A. He immediately stated that he felt he was entitled to some legal opinion, some legal advice, regarding the matter before he responded. That is, to the request of the subpoena. I noticed there was a telephone in the room and advised him he could call an attorney and he could tell the attorney that the subpoena had been served on him and explain the situation to him. He said that his attorney was in Chicago. I explained to him, I didn’t think the court would want to be delayed 2 or 3 days while he used an excuse like that to delay the proceedings. At about this time the young man in the room picked up the copy of the subpoena and began to look at it and said that there wasn’t anything on the subpoena that indicated it had immediate effect. I brought out the point that it was a ‘forthwith’ subpoena and then he raised the point that there was nothing in the subpoena that said that Mr. Moore had to go to 110 Fraser street. Mr. Moore, the respondent here, he then asked me if it was necessary for him to go to 110 Fraser street. On account of the conversation had previously over the telephone, that he knew the house but not the exact address, I told him they possibly might want him to point out the house.
“Q. You told him it was not necessary for him to go with you ?
“A. After that he still raised the point to the effect he would be entitled to legal advice before proceeding to pay any further attention as far as the subpoena was concerned. I again produced the original subpoena. He didn’t want to go. I warned him, pointing to the signature of the judge, Judge O’Neill, told him that it was Judge O’Neill’s signature, he understood that. He still said that he was going to contact his attorney. I told him that I wanted him to distinctly understand before I left the premises that under the law no authority had been given me from anywhere, nor was I to make any threats or promises, but if he didn’t comply with the subpoena, he might be thereby judged in contempt of court. He still said that he wanted to talk with his attorney before he did anything about it. I left the apartment and went down the steps. I retraced my steps and came up on the porch, Mr. Moore was at the door, I told him, ‘110 Fraser street is under surveillance of the police,’ and I told him that I didn’t want bim to tip off any of the boys that we were after that ticker machine. I left there and went to Fraser street. * * *
“Q. Did Mr. Moore, at any time, ask you to take him to Judge O’Neill?
“A. There was no conversation, either over the phone or at the residence, whereby Mr. Moore volunteered to appear before Judge O’Neill, or asked me to take him to him, other than when I talked with bim over the telephone, he said, ‘If somebody wants me to appear before the grand jury at the Western Hnion office, they will have to pick me up because I have no car.’
“Q. That’s one of the reasons you went to his house, because Mr. Moore had no car and if he was to appear before the grand jury, somebody would have to come and pick him up?
“A. Yes, sir.
“Q. Did he ever mention that again?
“A. When I went to the house, no, sir, he never mentioned that again.
“Q. I believe that that is all.”
Following the testimony of William A. Wackerly, the circuit judge ordered Charles Moore to take the stand and testify. At the conclusion of Charles Moore’s testimony, the circuit judge found Charles Moore guilty of contempt of court and imposed a fine and costs upon him.
Upon leave being granted, Charles Moore appeals and urges that his motion to dismiss the petition should have been granted for the reasons stated in said petition.
It is the contention of the people that the word “forthwith” in the subpoena meant “immediately;” that its meaning is not controlled by the time limit set forth in Court Rule No 9 (1945), which the people claim deals with matters of practice and does not purport to deal with commands of a subpoena; that its meaning when used in a subpoena depends.upon the circumstances and nature of the thing to be done; and that in the case at bar respondent was aware of the necessity of immediate compliance.
CL 1948, § 767.3 (Stat Ann § 28.943), provides authority for the one-man grand juror to compel attendance of witnesses and reads as follows:
“Whenever by reason of the filing of any complaint, which may be upon information and belief, any justice of the peace, police judge or judge of a court of record shall have probable cause to suspect that any crime, offense, misdemeanor or violation of any city ordinance shall have been committed within his jurisdiction, and that any person may be able to give any material evidence respecting such offense, such justice or judge in his discretion may, and upon the application of the prosecuting attorney, or city attorney in the case of suspected violation of ordinances, shall require such person to attend before him as a witness and answer such questions as such justice or judge may require concerning any violation of law about which he may be questioned; and the proceedings to summon such witness and to compel him to testify shall, as far as possible, be the same as proceedings to summon witnesses and compel their attendance and testimony, and such witnesses shall be entitled to the same compensation as in other criminal proceedings.”
While CL 1948, § 617.74 (Stat Ann § 27.923), provides:
“Every person who shall be duly subpoenaed as a witness in any court within this State * * * shall be bound to attend according to the command of such subpoena and testify; and for every failure so to attend and testify, without a reasonable excuse, shall be deemed guilty of a contempt of the court out of which such subpoena issued.”
The above statute provides that defendant’s conduct is to be measured by the terms of the subpoena. It is.an admitted fact that the subpoena was served on Charles Moore at about the hour of 1:30 p.m., on February 14, 1948'; that at the time the subpoena was served, the grand juror was holding a session of the grand jury at the office of the Western Union and remained there until shortly after 2 p.m., of the same day. If defendant was to appear before the grand jury at the office of the Western Union, he had not to exceed 45 minutes to do so before the grand juror left the office of the Western Union. We do not think that under the circumstances of this case the word “forthwith” as used in the subpoena required such hasty compliance. Defendant’s efforts to reach Judge O’Neill after the judge left the office of the Western Union have been heretofore related. His efforts to reach Judge O’Neill were those of a normal person. It is to be noted that the subpoena did not inform defendant that he was to appear before the grand juror at the office of the Western Union. The command of the subpoena was not al tered by the verbal instructions of the process server. In our opinion defendant was not in contempt in failing to go directly to the Western Union office, in failing to phone Judge O’Neill at his home or in failing' to make a personal investigation as to when the grand jury would again convene. Moreover, defendant’s course of conduct in going to the court house and his attempts to reach Judge O’Neill were not indicative of an intent to evade the command of the subpoena. In our opinion defendant’s actions in the premises were not contemptuous.
The judgment of the circuit, court is reversed and defendant discharged.
Bushnell, Boyles, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred.
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Bushnell, J.
George E. Yokom, a long-time resident of the city of Port Huron, died on January 21, 1947, leaving no last will and testament. Mary Postill Yokom, claimant. and appellee, sometimes referred to as May M. Postill, representing herself to be Yokom’s widow, filed a petition for the probate of bis estate, which was granted and she was appointed administratrix.
Later, Butberford M. Yokom, appellant herein, one of the 8 first cousins of the deceased, sought vacation of the probate order and a determination of the heirs of the decedent. The probate court refused to vacate the order and determined that Mary Postill Yokom was the legal heir of the deceased. An appeal was taken to the circuit court, where the issue was tried before a jury. The verdict rendered determined that Mary Postill Yokom was the common-law wife and a judgment was entered adjudging her to be the sole heir at law of the deceased.
Among the questions raised by appellant and the counter questions propounded by appellee, the controlling and decisive one is whether the verdict of the jury was contrary to the great weight of the evidence.
The proofs show that in the fall of 1920 or 1921, Mary, then 28 years of age, began keeping company with Yokom. Later, her sister, Ada Stuart, with whom she was living, objected to Yokom and Mary being out so late at night, to which Yokom replied, “She’s not your worry any more; we’re married.”
Mary left her sister’s home that same night and thereafter lived with Yokom until his death — a period of 26 or 27 years.
At the trial some 26 witnesses testified to occasions during this period when Yokom either introduced or referred to Mary as his wife, and all of them unequivocally testified that they understood that the parties were married and that they never had any reason to question that fact.
About 3 weeks prior to his death, Yokom dictated and signed an instrument reading as follows:
“Declaration of George E. Yokom.
“To Whom It May Concern: I have lived with Mary Postill, and I hereby declare her my common-law wife according to the State of Michigan, and she has helped me to make my estate.
(Signed) George E. Yokom.”
This declaration was sworn to before Edna Blanche Whiting, a notary public, who was Yokom’s secretary during the later years of his life.
Following this declaration, on January 8, 1947, George E. Yokom and Mary Postill Yokom, as husband and wife, executed deeds to certain properties in Port Huron to a third party, Ada Stuart, and she in turn reconveyed to George and Mary, “husband and wife, as joint tenants with right of survivorship and not as tenants in common.”
Appellant Rutherford M. Yokom produced several witnesses who were friends of the deceased and former officers of the Elks Club, of which he was a member. They testified that although they had known him for many years they never knew him to be a married man. Other testimony was received showing that during the years that George and Mary lived together he executed certain deeds and mortgages in which he described himself as a single man. Some of these instruments were witnessed by May M. Postill.
In his 1946 income-tax return Yokom claimed no exemption for Mary; nor did he refer therein to a dependent wife. Mary voted through the years at various elections under the name of May M. Postill, and testified under the name of Mary Postill in the municipal court of Port Huron in a case in which Yokom was the complainant.
This conflict of persuasive evidence tends to sustain the contentions of both parties and was submitted to a jury under proper instructions as to the law respecting common-law marriages. We cannot hold its verdict to be against the great weight of the evidence unless it is clearly and palpably so, Lewis v. Whitney, 238 Mich 74; nor can we substitute our judgment for that of the jury on issues of fact merely because it is possible, or even probable, that a different result would be reached if we were determining the matter, King v. Herfurth, 306 Mich 444; and Gleason v. Hanafin, 308 Mich 31.
The verdict of the jury is not against the great weight of the evidence.
Other questions raised have been examined, including claimed errors in admission of Yokom’s declaration, the court’s refusal to adopt certain of appellant’s requests to charge, claimed errors in the charge, alleged misconduct of counsel, denial of certain motions, and the claimed admission of testimony as to matters equally within the knowledge of the deceased. In none of these matters do we find any reversible error.
The judgment entered upon the jury’s verdict is affirmed, with costs to appellee.
Sharpe, C. J., and Boyles, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred.
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Cabe, J.
The material facts in this case are not in dispute. On February 5, 1951, the defendants were the owners of certain real estate, in the city of Grand Rapids, subject to a mortgage. On that date they signed an agreement authorizing plaintiff to find a purchaser for such property on the terms set forth therein, and to list it with members of the Grand Rapids Real Estate Board. The agreement as written undertook to give to plaintiff the exclusive right and privilege, for a period of 6 months, to find a purchaser. Defendants agreed to pay a commission of 5% of the sale price if plaintiff, or any member of the Grand Rapids Real Estate Board, produced a purchaser ready, willing, and able to carry out the contemplated transaction.
Claiming that it had performed its undertaking as evidenced by the listing agreement, plaintiff brought suit in circuit court to recover the sum of $1,900, the amount of the commission agreed to be paid. In its •declaration it based its right to recover on the following allegations:
“That pursuant to said listing and agreement plaintiff proceeded to exercise his best efforts and ability in and about the sale of said property, and did, on or about the 31st day of July, 1951, find a purchaser ready, willing and able to meet, and comply with the termsupon which defendants had listed such property for sale with plaintiff, and so advised the defendants.
“That plaintiff performed all thing’s by him to be done and performed under the terms of said contract.”
In support of the claim, proof was offered establishing that a few days before the expiration of the 6-months period of the listing agreement, plaintiff obtained an offer from a prospective purchaser who was ready, willing, and able to perform for the purchase of the property for the sum of $38,000 in cash. The defendants refused to accept the offer, it being the testimony of defendant Ray Kuzee,'who'was called by plaintiff for cross-examination under the statute, that the reason given for the refusal was because defendants did not wish to sell. The testimony of witnesses for the plaintiff indicates that the offer was not accepted because defendants desired time to consider it.-
The listing agreement signed by defendants specified the selling price as $38,000 on the following terras:
“Payable $20,000 cash inventory extra, balance ¡ $310 plus int. at 5% or more including interest at! —% (or with my consent for a lesser sum or on other terms), which price includes all encumbrances, taxes,! assessments,' and balances owing on furnaces, heaters and other equipment.”
At the conclusion of plaintiff’s proofs defendants moved for a directed verdict in their favor, based' in part on the claim that the plaintiff was not incorporated until after the listing agreement was signed, and in part on the fact that the offer to pur- ■ chase for the sum of $38,000 in cash was not in ac-. cordance'with the terms of sale as set forth in the; language of the listing agreement, above quoted. The trial court did not pass on the first question but came to the conclusion that under the decision of this Court in Sharrar v. Nestle, 222 Mich 538, the motion should be granted on the second ground alleged therefor. A verdict in defendants’ favor was directed, and judgment entered in accordance therewith.
Plaintiff has taken an appeal, alleging as the reasons and grounds therefor thát the trial court was in error in directing a verdict in defendants’ favor because, under the evidence, it had performed its agreement, was entitled to recover the commission, and the question of its right to recover should have been submitted to the jury. The further ground is alleged that the trial court was in error in refusing to permit plaintiff, after it had rested its case, to put in further proofs for the purpose of showing its efforts to dispose of the property listed and to controvert certain allegations in defendants’ answer.
Plaintiff’s assignments of reasons for it's appeal as well as the averments of its declaration indicate clearly that in seeking to recover the commission claimed to be due it relied on the theory that in procuring a' purchaser ready, willing, and able to pay the suni'of $38,000 in cash for defendants’ property it had complied with the terms of the listing agreement. Statements made in plaintiff’s behalf during the course of the trial clearly indicate that it was relying on the theory of performance, in other words, that the offer received by it and declined by defendants was substantially identical with the terms on which defendants had agreed to sell. The trial court was correct in holding that, under the undisputed proofs, plaintiff had failed to sustain its claim.
The factual situation involved in Sharrar v. Nestle, supra, is analogous to that in the case at bar. There, action was brought to recover a commission claimed by the plaintiffs to.be'due to them by virtue of a listing agreement under wbicb the defendants agreed to sell their farm for the sum of $14,000 net to them, of which amount $3,000 was to be paid in cash and the balance to be paid in 10 years with the privilege of paying any amount on any interest day with interest at the rate of 6% per annum from the date of delivery of possession. By way of commission plaintiffs were to receive, after they performed their, undertaking, all over and above the sum of $14,000 that might be received from a purchaser. An offer' to purchase was obtained for the sum of $14,800, payable $500 on the signing of the contract, $3,300 or more on March 1,1921, and the sum of $500 or more on the 1st of March of each year thereafter until the entire consideration payable, with interest at the rate of 6% from March 1, 1921, had been paid, the entire amount being payable in 10 years from said date.
In sustaining a directed verdict for the defendants, it was pointed out in the' opinion of this Court that under the terms specified in the listing agreement the defendants would have been entitled to have $11,000 of their money drawing interest at 6% for at least 1 year, while the terms of the offer submitted to them gave the purchaser the right to make payment in full at the time the payment in the sum of $3,300 would become due in accordance with the terms of the offer. It was further stated that:
“The right of defendant to have his $11,000 invested for at least a year at 6% interest was a valuable right. See Barbour v. Hickey, 2 App DC 207 (24 LRA 763).”
Counsel for appellant argue in their brief that inasmuch as defendants did not assign as a reason for their nonaceeptance of the offer submitted by plaintiff that the terms thereof were not in accord with the listing agreement they should have been held precluded on the trial from making such claim. In support of the contention, decisions from other States are cited, of which Moss v. Warns, 245 Wis 587 (15 NW2d 786, 156 ALR 598), is typical. Said case, and other cases cited in the opinion therein and in 12 CJS, p 224, supports the theory that under circumstances of the character involved in the case at bar an owner of property may not justify his refusal to accept an offer submitted to him by a real estate broker, under a listing agreement, entitling such broker to a commission’if he complies therewith, for any reason or reasons other than as stated at the time of the refusal. Such decisions are clearly not in accord with the position that this Court has heretofore taken. In Sharrar v. Nestle, supra, it was said with reference to an argument of the character in question:
“We have already said enough in relation to the failure to make the reservations mentioned in the listing contract. It was no part of the duty of defendant-to show the plaintiffs wherein they, had failed to comply, with the listing contract, but it was the duty of the plaintiffs to show they had complied with'the conditions before they were entitled to their commission. Hannan v. Fisher, 82 Mich 208; Gannon v. Stansfield, 216 Mich 440, and the cases cited therein.”
See, also, Koffman v. Pack, 224 Mich 102. We
think it must be said that the authorities on which appellant relies are- not in accord with prior decisions of this Court.
The case of Jepsen v. Marohn, 22 SD 593 (119 NW 988, 21 LRA NS 935), is analogous on the facts to Sharrar. v. Nestle, supra. It was there held that a real estate broker was not entitled to recover .a commission by producing a buyer ready, willing, .and able to pay for the property in cash, the listing agreement signed by the owners authorizing a sale for a certain amount down with the remainder in annual instalments with interest. In reaching such conclusion it was said, in part:
“The plaintiff was only authorized to sell the property upon the terms specified, and until he should find such a purchaser ready, willing, and able to comply with those terms he was not entitled to any commission. No such purchaser was produced by the plaintiff, but it appears from the evidence that he did produce a purchaser who was willing to take the property at the price of $4,200, specified in the contract, but only ready to take the property and pay therefor in cash. As to such a purchaser the minds of the parties had never met. The defendants may have been willing to dispose of the property upon the terms specified in the contract, vis., $2,200 cash and the balance in 1 and 2 years at 10% interest; but they might not have, been willing to make any contract authorizing the plaintiff to sell the property for $4,200 in cash. Hence they were not bound to give any reasons for their refusal to accept a purchaser on terms entirely different from those proposed by them in. their contract. The learned circuit court seems to have adopted the erroneous theory that if the defendants refused to accept the money and refused to accept the contract proposed to them by the. plaintiff, at the time of the tender, they were es-topped from denying that they made such a contract because they failed to give as the reason for not accepting the tender that the amount tendered was in cash and not in accordance with the terms of the contract. This position was clearly untenable, and the fact that the defendant Marohn stated fit wasn’t enough’ is not in our view of the case material. The contract, as will be seen, was executed by the defendants and the plaintiff and kept by the plaintiff, and he knew therefore what the terms on which he was authorized to make the sale were, and he is presumed to know that until those terms were complied with he had no right to make a tender of any other sum or in any other manner than that specified in the contract, unless the terms of the contract were changed by the consent of the defendants.
“There was no question of estoppel involved in this case; the only question being as to whether or not the plaintiff had produced a purchaser ready, willing, and able to comply with the terms of the contract. Clearly he produced no such purchaser, but sought to substitute an entirely different contract from that he was authorized to make, which latter substitute was not accepted by the defendants.”
As before pointed out, plaintiff’s right to recover was based in its declaration and in its proofs on the theory that it had performed the contract, and, hence, was entitled to the specified commission. The reasons alleged for the taking of the appeal do not specifically set forth any claim that the defendants were precluded from asserting on the trial failure on the part of the plaintiff to procure and submit an offer ■in accordance with the listing agreement. Neither does it appear from the record that the claim that is now sought to be advanced in this Court was in any way called to the attention of the trial judge.
There was, in consequence, no specific determination by him with reference to the matter now.urged in plaintiff’s behalf. Without reference to the merits of the issue, we think that the attempt to raise it in this Court comes too late. In Coates v. Coates, 327 Mich 444, which was an action to foreclose a lien, it was said:
“Defendants Meeks claim that the recordation in miscellaneous records does not constitute constructive notice. This question was not raised by the pleadings or argued or considered by the trial court in its opinion. Under such circumstances we do not consider the question raised in this Court for the first time on appeal.”
See, also, Kellom v. City of Ecorse, 329 Mich 303, 309, in which defendant sought to raise, by argument in its brief on appeal to-this Court, the defense of nonliability based on the exercise of an alleged governmental function. In denying the right to have such issue determined, it was said:
“The question was not raised in the trial court and will not be considered here.”
In view of the conclusions reached on the questions above considered, it becomes unnecessary to discuss incidental issues raised by counsel. We find no reversible error and the judgment entered in the trial court is affirmed, with costs to defendants.
Dethmeks, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
North, C. J., did not sit.
See CL 1948, § 617.66 (Stat Ann § 27.915).—Reporter. | [
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Boyles, J.
Plaintiff filed a declaration against defendant John Post in trespass on the case claiming that Post had obtained certain merchandise from him by fraud and deceit, and asked for $245.33 judgment. On trial by jury defendant moved for a directed verdict on the ground that plaintiff had not filed in the office of the county clerk of Muskegon county a certificate of doing business under an assumed name, as required by Act No, 101, Pub, Acts 1907, as amended by Acts Nos. 272, 274, Pub. Acts 1931 (2 Comp. Laws 1929, § 9825 et seq. [Comp. Laws Supp. 1940, § 9825 et seq., Stat Ann. § 19.821 et seq.]). Admittedly plaintiff was doing business in Muskegon county under an. assumed name and had not filed the aforesaid certificate. The court reserved decision, plaintiff had verdict of jury for $225.68, defendant moved for judgment non obstante veredicto, which motion was granted by the court on the ground that the statute required plaintiff to have the aforesaid. certificate on file in Muskegon county before commencement of suit. On leave granted, plaintiff appeals from judgment for defendant entered on the motion. Appellee has not filed a brief in this court.
The judgment must be set aside. This is an action sounding in tort. The comparable statute requiring the filing of a certificate of copartnership by copartners (2 Comp. Laws 1929, § 9929 [Stat. Ann. § 20.111]) does not apply to actions ex delicto. Denton v. Booth, 202 Mich. 215 (2 A. L. R. 114); Barton v. Thompson’s Estate, 225 Mich. 40; Meehl, for use of Eagle Indemnity Co., v. Barr Transfer Co., 305 Mich. 276. We have held that this rule also applies to actions sounding in tort where the plaintiff was doing business under an assumed name without filing a certificate under the assumed name act. Winget v. Railway Co., 210 Mich. 100. Notwithstanding the provisions of Act No. 101, Pub. Acts 1907, as amended, one may bring an action ex delicto without filing the certificate. Under these circumstances relief is not limited to dismissal of the case without prejudice and the trial court may be directed to enter judgment for plaintiff. Levin v. Fisher, 217 Mich. 681.
■ Reversed and remanded for entry of judgment for plaintiff on the verdict.
North, C. J., and Starr, Wiest, Btttzel, Bttshnell, Sharpe, and Reid, JJ., concurred. | [
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North, C. J.
By her bill of complaint plaintiff sought a decree for separate maintenance under 3 Comp. Laws 1929, §12794 (Stat. Ann. §25.211). The defendant answered and by cross bill sought a decree of divorce. Testimony was taken in open court and a decree entered dismissing plaintiff’s bill of complaint and denying defendant the relief sought in his cross bill. The plaintiff only has appealed.
The controlling question presented is whether the decision of the trial court in denying plaintiff the relief sought was against the weight of the evidence. The parties were married in October, 1931, and separated in April, 1940. They have three children. It is appellant’s claim that throughout the later years of their married life defendant was guilty of acts of extreme and repeated cruelty and of failure to sup-, port his family, and that in consequence thereof she should have been granted a decree of separate maintenance.
The circuit judge found that defendant “has not been guilty of nonsupport,” and our review of the record satisfies us that this determination was correct. This leaves only the question of whether plaintiff is entitled to relief on the basis of her charge that defendant was guilty of acts of extreme and repeated cruelty under such circumstances as would entitle her to a decree of divorce on that ground, if such relief were sought. We shall not attempt to review in detail the testimony which discloses a turbulent condition in the home of these parties during the time they lived together; but our review of the record satisfies us of the correctness of the conclusion of the trial judge that plaintiff’s attitude toward her husband had very much to do with producing the unhappy condition. Iiis occupation as the operator of commercial trucks necessitated working at irregular hours and frequently took him, away from his home for days and nights at a time; and the record shows that upon his return on the merest pretext he was charged with being unfaithful to his wife and of constantly deceiving her as to the occasion of his being absent from Ms home. Plaintiff was persistent in her efforts to find some circumstance on which she could base such charges. This course of conduct led to frequent quarrels between the parties, and plaintiff claims that on five or six occasions it led to physical assault upon her by defendant. As to such claimed assaults the circuit judge found that plaintiff did not establish her contention except on one occasion when in the course of an altercation defendant slapped plaintiff; and as to defendant’s claimed unfaithfulness towards plaintiff the circuit judge found “there is no testimony which supports a claim that the circumstances referred to were immoral transactions.” Evidently in coming to- this conclusion the circuit judge accepted as true defendant’s explanation that on the two or three occasions when defendant was seen in the company of other women, the circumstances were not such as to justify the conclusion that there was anything improper about the incidents. Plaintiff testified defendant called her vile and indecent names, and defendant testified to like conduct on the part of plaintiff. At the time of the final separation plaintiff in defendant’s absence had collected his personal belongings for the evident purpose of insisting that he should leave the home, although when defendant undertook to do so by placing his belongings in his automobile plaintiff retracted. The purport of the trial judge’s finding is that plaintiff was as much at fault as defendant in bringing about and in perpetuating their domestic troubles; and the record is such that the trial judge’s determination in that respect must be held to be correct. Under the circumstances the disposition made of this case in the circuit court should not be disturbed.
The decree entered in the circuit court is affirmed, without costs to either party.
Starr, Wxest, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Reid, J.
(dissenting). The bill of complaint was filed to enjoin defendant from operating its restaurant business in such manner as to cause its patrons to form a line-up in front of plaintiffs’ adjacent store, obstructing access to and view of the front of the store by persons on the sidewalk. The circuit court issued an injunction as prayed for and defendant appeals.
The case was submitted on stipulation of fact, the more important parts of which are as follows:
“2. Defendant is a Michigan corporation, with its principal offices in Detroit, Michigan. For a number of years past it has been engaged in a restaurant business at several locations within the city of Detroit, including the premises designated as 1130 Griswold street, which adjoins the premises occupied by plaintiffs. Defendant’s said premises are likewise leased from the E, D. Stair Corporation and are part of the same building in which plaintiffs’ store is located. The store in which the defendant’s restaurant business is carried on is directly adjacent to and south of plaintiffs’ premises. The property in question is on the east side of Griswold street, which runs north and south, and is in the block bounded by State street on the north ■and Michigan avenue on the south. The premises •in question are a part of the central downtown shopping area of Detroit. The public sidewalk in front of the premises in question is approximately .14 feet in width.
“3. Defendant’s restaurant business conducted at said premises has been very successful. Its business is conducted primarily in cafeteria style at popular prices and thousands of patrons are served there daily, except Sundays. On frequent occasions, the interior of defendant’s premises is unable to hold the large number of customers seeking to gain entrance, although it does accommodate, a double line of people within said premises which is approximately 60 feet long from the entrance to the .serving counter; and often to the extent hereinafter shown crowds of persons line up on the outside of defendant’s premises on the public sidewalk and continue their line from defendant’s premises running north along the front of plaintiffs’ store and beyond. * * *
“4. The lines thus formed on the public sidewalk are generally from one to two persons in depth and, on rare occasions, more, and to the extent hereinafter shown extend in length across the entire front of plaintiffs’ store and for some distance beyond. The frequency with which such crowds are gathered and the period of time for which they so continue varies from day to day. In earlier years there were occasions when lines of customers were so gathered, but such occasions were less frequent and the lines continued for shorter periods than in the six-month-period prior to the filing of the instant bill of complaint. * * * When snch lines form, it is usually during the lunch and dinner period, with the lunch period being from 11 a.m. to 2 p.m. and the dinner period from 5 p.m. to 7:30 p.m. These lines occur with varying degrees of frequency that may be said to occur not less than three times a week and often daily, and.last for periods extending from % hour to 1% hours at a time.
“5. When such lines of people gather on the public sidewalk in front of plaintiffs’ store, the front of their store is substantially hidden from view, plaintiffs’ display windows are almost completely obstructed, and it is from time to time difficult to break through the line to go into or come out of plaintiffs’ doorway. People so lined up are' often loath to permit plaintiffs’ customers to break through the line for the purpose of entering plaintiffs’ store under the belief that such persons are merely trying to get ahead of them for the purpose of entering into defendant’s restaurant.’’
The trial judge’s findings do not sustain the decree. The opinion says the police' should .cause patrons of the restaurant to form a line near the edge of the 14-fbot sidewalk and not next to the building and that if they fail, the defendant could and should perform this service. The opinion further states:
“We will not go the absurd length of stating that he should drive away customers who cannot be served at once and who are obliged to wait their turn. We do not hold that he must at his peril cope with this problem with complete efficiency. But we do hold that he cannot sit at his cash register with sublime indifference, saying ‘So sorry.’ We do hold that he must do what he reasonably can — that he can at least try to avoid damaging his neighbor. This does not involve the usurpation of a policeman’s authority.”
Plaintiffs rely in their brief upon the case of Mackenzie v. Frank M. Pauli Co., 207 Mich. 456 (6 A. L. R. 1305). However, the matter of the conducting of a lumber business, the use of machinery for interior trim factory, parking wagons along in front of plaintiff’s residential property, piling refuse and materials in the streets and alley, do not reveal a situation comparable to the present case. It is so different that the case cited does not aid in determining the issues in the instant case. There are no cases cited by plaintiffs that bear on the disputed-right of a store to enjoin or regulate waiting lines of patrons of a lawful business in property adjacent thereto.
Many cases are cited by plaintiffs dealing with injunctive relief against nuisances: for example, enjoining a permanent outside stairway built on the street, McCormick v. Weaver, 144 Mich. 6; gasoline filling station in a street, Village of North Adams v. Wertz, 218 Mich. 507; flagman’s shanty in a street, Long v. New York Central R. Co., 248 Mich. 437; boathouse projecting into foot of street, People v. Severance, 125 Mich. 556. Foregoing are cases in which physical obstructions were placed or threatened to be placed in streets by direct acts of the defendants themselves and the principle involved is well recognized.
The question involved herein is novel.
There are many occasions of waiting lines of patrons observed in many cities at ballparks, theaters, and sfeveral other places where lawful business is conducted. The situation in the instant case results in something of a damage to the neighbor’s property for which the law affords no remedy as between the parties concerned. Instead the remedy is in the power of the police and it is their plain duty to reasonably control street conditions.
The decree recites that defendant’s conduct contributes to and causes violations of the ordinance of the city and causes continuing or recurrent nuisance. The defendant is not guilty by reason of the facts recited in the stipulation of a violation of the ordinances against loitering, congregating, et cetera, on the streets and the decree is at fault in reciting such guilt.
The police have exclusive charge of the matter of conduct of persons on the streets. It is erroneous to order a private party to assume any control of persons on the streets whatsoever.
The decree requires:
“That defendant cause such employees to handle the lining up of such customers in such a manner as will leave a free passageway for use of the public on the sidewalk adjacent to the premises of plaintiffs and defendant; that such line-up shall be directed to form along the outside edge of tlie sidewalk nearest the curb, with not more than two- persons standing abreast of each other, and that the continuity of such line-up shall be broken so as to permit free passageway opposite plaintiffs’ doorway, and that on alternate weeks, such line-up shall be directed to be formed to the south of defendant’s premises.”
This portion of the decree requires of defendant the exercise of functions that are not permitted in law and the assumption of authority over persons in the street, which authority neither the court itself nor the defendant may lawfully exercise.
The stipulation further recites that the parties during the Christmas season of 1942 shared the expense of having a watchman who lined up the crowds so as to leave an adequate view of plaintiffs’ display windows and an opening for ingress and egress to plaintiffs’ doorway with nearly satisfactory results. This apparently fair arrangement could be voluntarily continued only by acquiescence of the police and is not such that the court could compel.
In this case the record shows that the defendant addressed a communication to the police commissioner requesting police control of the situation.- A sincere insistence on such police action is all that could be expected of defendant. ■
The decree should be reversed and bill dismissed. Defendant should have costs of both courts.
North, C. J., and Sharpe., J., concurred with Reid, J.
Boyles, J.
Plaintiffs have established to some extent the existence of a private nuisance which can be sufficiently abated by defendant to minimize the resulting harm to plaintiffs’ business. Plaintiffs are entitled to some relief. Mackenzie v. Frank M. Pauli Co., 207 Mich. 456 (6 A. L. R. 1305).
I cannot agree with Mr. Justice Reid that this is entirely a public nuisance, and that the only remedy for the. abatement thereof rests with the public (police) authorities.
“Injunction lies at the suit of a private person to restrain such an appropriation of the site of a street by another person, as leaves no mode of access to complainant’s premises, and otherwise prejudices them.” Pratt v. Lewis (syllabus), 39 Mich. 7.
If a nuisance is private, infringes on the rights of others, and arises out of the manner of conducting a legitimate business, equity will point out the nuisance and decree the adoption of methods calculated to eliminate or minimize the injurious features. Adams v. Kalamazoo Ice & Fuel Co., 245 Mich. 261; Smith v. City of Ann Arbor, 303 Mich. 476.
The record before us is convincing that defendant’s manner of conducting its restaurant business is harmful to plaintiffs and results in their loss of business. It is possible to minimize the damage without imposing undue hardship on defendant. The decree entered in the circuit court should be modified. It is not necessary to require defendant to form a line-up of its customers on the outside edge of the sidewalk with not more than two persons standing abreast of each other, with an opening in crossing the sidewalk. The obstruction of view of plaintiffs’ show windows for a short period of time is unimportant as compared with the inconvenience to the public use of the street that would be caused by trying to compel users of the street to pass through a double line-up of persons from curb to door. Unobstructed entrance to plaintiffs’ store can readily be accomplished by defendant by means of an employee of defendant supervising the line-up of its customers. Plaintiffs may propose a decree for entry in this court in accordance herewith. No costs of appeal allowed either party.
Starr, Wiest, Butzel, and Bushnell, JJ., concurred with Boyles, J. | [
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North, C. J.
Appellants Herbert Brown, Dennis Derryberry, and Carl Fitzpatrick on trial by jury were convicted of breaking and entering in the nighttime the office of the McCurdy Coal Company in Detroit, with intent to commit the crime of larceny. The undisputed evidence shows that the doors and windows of the coal company’s office were locked between 8 and 9 p. m. on the night of the burglary. Between 1 and 2 o’clock of that night, in response to an alarm, a police scout car went to the coal company’s office. Police officers upon their arrival saw through windows and a glass in the door three men inside the building. With the. use of burglar tools one of two safes in the office had already been opened and two of the three burglars were seen crouched in front of the other safe apparently attempting to open it. The third man was also observed. The three men escaped from the building, but defendant Fitzpatrick was apprehended by a police officer only a short distance from where the offense was committed. The other two defendants were arrested about 10 o ’clock, the following forenoon. Upon being searched one was found to have on his person $75 and the other $78, each of these amounts being substantially one-third of the money taken from the burglarized safe.
The first question raised by appellants is: “Was the testimony unconvincing?” — evidently meaning was the testimony insufficient to establish guilt of each of the defendants beyond a reasonable doubt. This phase of the appeal involves appellants’ contention, among other things, that the identification of each of appellants was of little, if any, probative force; and without such identification the testimony was insufficient to sustain the conviction. The above contention on the part of appellants is not in accord with the record which shows the contrary. Police officer Slack testified:
“I saw one man I am able to identify, defendant Brown. I saw him in the small office on the American street side, as he ran past the window. * . * * I identify him now as that man, positively. ’ ’
Police officer St. Denis relative to the other two defendants testified:
“I got out (of the police car) first and ran down to the front door. I saw two men. I identify defendants Derryberry and Fitzpatrick. They were crouched down by the safe. There were two safes in the rear of the office. I first saw them through (the glass in) the door. I tried the door. By that time, they got up, starting towards me running towards another door which led into the office. * * * I recognized the two men that were running towards the door at the back of the building. I am positive. I identified them in the office the next day.”
Notwithstanding appellants’ contention to the contrary, the record does not disclose that the physical situation was such relative to doors, windows, et cetera, as rendered impossible the identification testified to by the police officers. Further, there is an abundance of corroborative testimony in this record which establishes the fact beyond any possible doubt that these defendants are guilty.
In behalf of defendant Derryberry, who did not take the witness stand, error is asserted in that the court did not give a claimed request to charge the jury to the effect that this defendant’s failure to testify does not raise a presumption of his guilt. As noted in appellants’ brief: “The record fails to show” such a request was presented. On appeal the record is controlling, and since it fails to show that the alleged request was presented to the court, error cannot be assigned on failure to charge accordingly. Further, it may be noted that the trial judge in his charge to the jury referred to this phase of the law as follows:
“The defendants started out in this case with a presumption of innocence. * * * And that fact that one of the defendants in this case therefore did not take the stand, should not be considered by you in any way in arriving at your verdict.”
Other alleged errors assigned in support of this appeal have been carefully considered and found to be without merit. The conviction and sentence of the defendants are affirmed; and the case remanded for execution of sentence.
Starr, Wiest, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
See Act No. 328, § 110, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 17115-110, Stat. Ann. § 28.305). — Reporter. | [
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Williams, J.
The major issues in this case are basically similar to those in Blakeslee v Farm Bureau Mutual Ins Co, 388 'Mich 464 (1972). However, in addition to an "other insurance” clause, an "exclusions” clause is involved here. Also both policies are with the same insurance company. The two issues are:
I. Does the specific language of the (A) "other insurance” limitation against recovery on other insurance policies as well as the primary policy or (B) the separate fail-back "exclusions” clause from recovery on other policies in the uninsured motorist coverage apply to the facts of the instant case?
II. If so, does 1965 PA 388; MCLA 500.3010; MSA 24.13010 invalidate such "other insurance” and/or separate "exclusions” limitations? Specifically, can the estates of the insured decedent husband and wife (both covered under his policy), who are injured in an accident through the fault of an uninsured motorist, combine recoveries (i.e. stack or pyramid) from both policies issued by the same insurance company which covered both the insured’s car which was involved in the accident as well as a second vehicle owned by the insured covered by another identical policy, but not involved in the accident, in excess of the limitation provisions?
On November 27, 1968, Mr. Donald Prochaska and his wife were involved in a fatal automobile accident with an uninsured motorist in the State of Ohio. The decedent insureds owned two vehicles which were each insured under a separate but identical State Farm Insurance policy with uninsured motorist coverage in the amount of $10,000/ $20,000. The decedents paid two separate, independent premiums and were issued two certificates of insurance. At the time of the accident, the decedent insureds were occupying one of their two vehicles insured by State Farm.
The estates of the decedents first instituted suit against defendant State Farm on the basis of the policy covering the vehicle involved in the accident. State Farm conceded coverage in the potential amount of $10,000 to each estate. The estates, however, made a further claim under the policy of insurance covering the other vehicle of decedent’s which was not involved in the accident. State Farm denied the existence of this additional coverage relying on the "exclusions” and the "other insurance” provisions of the second policy.
The estates initiated a declaratory action in Wayne Circuit Court to have the coverage issue on the second policy determined. The Honorable Thomas J. Foley entered a declaratory judgment determining that additional coverage was not owed by State Farm under the second policy of insur anee. The Court of Appeals reversed, relying on their decision in Blakeslee, 32 Mich App 115 (1971) finding that the "other insurance” provision and the "exclusions” clause violated the policy of MCLA 500.3010. 34 Mich App 512.
I.
A. "Other Insurance”
The language of the second policy provides in pertinent part as follows:
"Other Insurance: * * * while occupying an automobile not owned by a named insured, the insurance * * * shall apply only as excess insurance over any other similar insurance available to such occupant * * * .” (Emphasis added.)
The above clause is not applicable in our case. In our factual situation we have two named insureds (both husband and wife under the policy qualify as named insureds) occupying an "automobile owned by a named insured under this coverage * * * ”, i.e., Donald Prochaska.
Interpreting the identical clause in a similar fact situation, the Illinois Appellate Court in Deterding v State Farm Mutual Automobile Insurance Co, 78 Ill App 2d 29, 35; 222 NE2d 523, 526-527 (1966), home state of State Farm, stated:
"Here the exclusion obviously applies to an 'insured while occupying an automobile not owned by a named insured.’ Such is not the case before us. The named insured did own the automobile involved in the accident. He was occupying an automobile owned by him as named insured. The exclusion applies only if bodily injury occurred while the insured was occupying an automobile not owned by a named insured under this coverage.” (Emphasis in original.)
B. "Exclusions” Clause.
The policy language as to the separate fall-back "exclusions” clause is complex but appears to apply to our facts. Briefly stated and translated to the facts of this case, there was recovery on policy number one on its car number one in which the injury occurred. Policy number two on car two provides that the uninsured motorist protection afforded in policy number two will not apply to the insured if the "owned” vehicle related to the insured’s injuries (car one) is not the "insured” automobile as defined under the policy number two. An "insured” automobile is an "owned automobile * * * described in the declarations” of the policy. Application of this provision in the case at bar gives this result. Vehicle number one was the accident-involved "owned” vehicle. However, vehicle number one is not described in the declarations of the policy covering vehicle number two from which the estate wishes to extract coverage, and therefore, the uninsured motorist protection under policy two cannot be extended to the insured while occupying or using car number one.
II.
We are left with the question of whether MCLA 500.3010 operates to void the "exclusions” clause. As was resolved in Part I, the "other insurance” clause did not apply to our facts. Given this Court’s decision in Blakeslee, even if the "other insurance” clause did apply here, it would be struck down as being contrary to MCLA 500.3010. Should the Blakeslee rationale be extended to void "exclusions” clauses also? We hold the answer is yes.
The purpose of the "other insurance” clause and the "exclusions” clause is the same. That is the clauses are an attempted means to avoid the statutory obligation of providing uninsured motorist coverage. As we said in Blakeslee, "The language of the statute is plain, unambiguous and mandatory. It unequivocally requires that '[no] * * * policy * * * be delivered * * * unless coverage is provided therein’. * * * It would be unconscionable to permit an insurance company offering statutorily-required coverage to collect premiums for it with one hand and allow it to take the coverage away with the other by using a self-devised 'other insurance’ limitation.” 388 Mich 473-474 (1972). The statute commands coverage for all motor vehicles and such coverage is not limited to an injury suffered by the insured while occupying that motor vehicle.
As was stated by the Court in Sellers v United States Fidelity & Guaranty Co, 185 So 2d 689, 690 (Fla, 1966):
"If the statute is to be meaningful and controlling in respect to the nature and extent of the coverage and to the sources of recovery and subrogation of the insurer, all inconsistent clauses in the policy to the controlling statutory language * * * must be judicially rejected. ” (Emphasis added.)
We follow our decision in Blakeslee and affirm the decision of the Court of Appeals with all costs going to the plaintiff.
T. M. Kavanagh, C. J., and Adams, T. E. Brennan, T. G. Kavanagh, and Swainson, JJ., concurred with Williams, J.
Black, J., did not sit in this case.
"INSURING AGREEMENT III—
"UNINSURED AUTOMOBILE COVERAGE EXCLUSIONS — INSURING AGREEMENT III
"Insuring Agreement III does not apply:
"(b) to bodily injury to an insured while occupying or through being struck by a land motor vehicle owned by the named insured or any resident of the same household, if such vehicle is not an 'insured automobile’;
"DEFINITIONS — INSURING AGREEMENT III "The definitions of 'Automobile, Owned Automobile, Temporary Substitute Automobile, Bodily Injury and Occupying’ under Insuring Agreements I and II apply to Insuring Agreement III.
''Insured Automobile — means
"(1) an owned automobile, provided the use thereof is by such first named insured or spouse or any other person to whom such first named insured or spouse has given permission to use such automobile, if the use is within the scope of such permission, or
"(2) an automobile not owned by the named insured or any resident of the same household, other than a temporary substitute automobile, while being operated by such first named insured or spouse,
"but the term 'insured automobile’ shall not include any automobile while being used as a public or livery conveyance, or any automobile while being used without the permission of the owner. "DEFINITIONS — INSURING AGREEMENTS I and II
''Owned Automobile — means the motor vehicle or trailer described in the declarations, and includes a temporary substitute automobile, a newly acquired automobile, and, provided the described automobile is not classified as 'commercial’, under coverages A, B, C and M, a trailer owned by the named insured or his spouse, if a resident of the same household. Under coverages F and G, 'owned automobile’ also includes, while such property is in or upon such automobile, wearing apparel and luggage owned by the first person named in the declarations, or, while residents of his household, his spouse and the relatives of either.” (Emphasis added except for "Insured Automobile” under "Definitions — Insuring Agreement III” and "Owned Automobile” last paragraph.) | [
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Williams, J.
This case places one basic issue before this Court: is it an unlawful conflict of interests for an attorney to act as a member of a gassi-judicial board hearing cases involving employees of a particular corporation and at the same time be a member of a law firm representing wholly-owned subsidiaries of that corporation?
This case comes to us on appeal from the State Bar Grievance Board and is Supreme Court No. 53.295. For purposes of convenience on appeal it was argued with the case of International Union, United Automobile, Aerospace & Agricultural Implement Workers of America-UAW v Governor, 388 Mich 578 (1972), brought in the Court of Appeals, which arose from the same factual situation. This opinion, however, deals only with the legal issues presented in the State Bar Grievance Board case of Schlossberg v O’Rourke, Supreme Court No. 53,295.
The Grievance Board without an evidentiary hearing rendered its opinion on the following pled facts: The law firm of Elsman, Young and O’Rourke, in which Mr. O’Rourke is a partner, derives income from its representation of certain wholly-owned subsidiaries of Chrysler Corporation, namely Chrysler Financial Corporation, Chrysler Credit Corporation, and Car City Insur anee Company. At the same time Mr. O’Rourke did not disqualify himself as a member of the Michigan Employment Security Commission (MESC) Appeal Board in the consideration of some claims against the Chrysler Corporation brought before that guas/'-judicial body. The Grievance Board concluded that such failure to disqualify himself did not as a matter of law constitute professional misconduct on the part of Mr. O’Rourke and dismissed appellant’s complaint. We cannot agree.
Article 6, § 5 of our 1963 Constitution states that "[T]he supreme court shall by general rules establish, modify, amend and simplify the practice and procedure in all courts of this state.” Therefore we have the implied power to regulate and discipline the Bar of this state. As early as 1850, this Court recognized and exercised its power to regulate members of our state Bar. In the Matter of Mills, An Attorney, 1 Mich 392 (1850), cited with approval in In re Hartford, 282 Mich 124 (1937).
This Court has recently adopted a new Code of Professional Responsibility, Canons and Disciplinary Rules. Actions such as those with which Mr. O’Rourke is charged would constitute professional misconduct even prior to the adoption of this Code, and it is alleged he has also persisted in this type of conduct subsequent to ,the adoption of the new Code.
Canon 5 reads: "A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client.” If as alleged Mr. O’Rourke represented Chrysler wholly-owned subsidiaries through his law firm and at the same time decided claims before the MESC involving the parent corporation, Mr. O’Rourke was serving conflicting interests. Such a situation could affect his independent professional judgment in violation of Canon 5.
Canon 9 of the Code reads: "A Lawyer Should Avoid Even the Appearance of Professional Impropriety.” If, as alleged, Mr. O’Rourke failed to disqualify himself from the consideration of the MESC Appeal Board cases involving Chrysler Corporation or to disassociate himself from his law firm while that firm represented the Chrysler wholly-owned subsidiaries, Chrysler Financial Corporation, Chrysler Credit Corporation and Car City Insurance Company, there would be an apparent conflict of interests and the appearance of professional impropriety. This would constitute a violation of Canon 9.
This Court has already ruled in an opinion independent of, but supportive of, the Canons that a conflict of interest of the nature of that charged to Mr. O’Rourke is a violation of a fair trial in a fair tribunal as basically required by due process. In Glass v State Highway Commissioner, 370 Mich 482 (1963), this Court held that an employee of the State Highway Commissioner should have disqualified himself from conducting a hearing on the necessity of taking certain property for highway purposes. Writing for a unanimous court, Justice Eugene F. Black stated that the employee was an interested party to the extent of keeping his job by implementing the highway planning of his superior, and concluded that public officials must avoid even the appearance of injustice.
Canon 9 and Glass v State Highway Commissioner, supra, stand for the rule that a public employee and a lawyer cannot lawfully act in judgment where one of the parties may affect his economic interests or may have the appearance of affecting his economic interests.
As the State Highway Department employee was "an interested 'person’; interested to the extent of keeping his job” it may be said that under the alleged facts Mr. O’Rourke had an interest that his firm keep or enlarge the wholly-owned Chrysler subsidiaries’ retainer. This is not to say that Mr. O’Rourke was or would be tempted or that the Chrysler Corporation would or could change the retainer. The rule does not require that. The rule strictly requires that there be no appearance that such things could happen.
Justice Black in Glass v State Highway Commissioner, supra, 487, emphasized this rule by quoting from In re Murchison, 349 US 133, 136; 75 S Ct 623; 99 L Ed 942 (1955), as follows:
" 'Such a stringent rule may some times bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way "justice must satisfy the appearance of justice.” Offutt v United States, 348 U.S. 11, 14 [75 S Ct 11, 99 L Ed 11 (1954)].’ ”
The fact that Mr. O’Rourke’s law firm repre dented Chrysler Corporation wholly-owned subsidiaries rather than the parent corporation itself does not eliminate the conflict of interest. The State Bar Grievance Board Opinion and Brief in holding that this fact makes a difference miss the big picture and the major thrust of the Canon 9— Glass v State Highway Commissioner rule by looking through the wrong end of the telescope.
That rule looks to whether Chrysler Corporation can reach, or whether there is the appearance that Chrysler Corporation can reach, Mr. O’Rourke’s livelihood. The Grievance Board looks rather to whether Mr. O’Rourke can reach Chrysler Corporation through a lawsuit. Not only is this looking at the matter backwards, but certainly the facts of life are that it is a very different matter whether an outsider can pierce the corporate veil from whether the parent corporation can use its own corporate structure to accomplish its own purposes.
If such conflict of interests exist it can be purged in several different ways: 1) Mr. O’Rourke may disqualify himself from all cases before the MESC Appeal Board involving Chrysler Corporation or its subsidiaries; 2) he may disassociate himself from the law firm of Elsman, Young and O’Rourke; 3) the law firm of Elsman, Young and O’Rourke may terminate its legal representation of the various Chrysler subsidiaries. Any of these three alternatives would terminate the conflict of interests.
In passing, we note that the appellant’s other allegations are either moot or without sufficient merit to require consideration at this time.
The order of the Grievance Board dismissing the complaint and request for investigation is reversed. The Grievance Board is instructed to proceed under Rule 15 to conduct such hearing and examine such proofs as appropriate and test whatever decision it decides to render in light of this opinion and the authorities cited, namely Canons 5 and 9, and Glass v State Highway Commissioner, supra, Offutt v United States, supra, and In re Murchison, supra.
Reversed and remanded pursuant to instructions contained herein. Costs to abide final result in this case.
T. M. Kavanagh, C. J., and T. G. Kavanagh, and Swainson, JJ., concurred with Williams, J.
Black, J.
(for order of remand with instructions). I agree that the majority has laid down correctly the legal principles that should be applied to the conduct of defendant O’Rourke as charged by plaintiff and denied by defendant, provided those charges or some controlling portion thereof come to substantiation "by a preponderance of the evidence” as in State Bar Grievance Rule 15.13 provided (383 Mich xlvii-lxv). But those charges have not as yet been heard upon what I believe are necessary proofs. Accordingly, I find myself in agreement with Justice T. E. Brennan’s criticism that Mr. O’Rourke has not as yet been accorded that hearing which due process requires.
Defendant O’Rourke’s counsel forensically concludes his brief, with no traverse by any original party or party amicus:
"In the Appellants’ Brief is the suggestion that not only should the determination of the Court of Appeals be reversed and not only should the action of the grievance administrator be reversed, but also that this Honorable Court, without even affording an opportunity to the Appellee to have his 'day in court’, should grant relief in both causes, to-wit, the issuance of a Writ of Superintending Control and the issuance of at least a reprimand for the Appellee’s supposed unethical conduct.”
Counsel went on to say that "such a procedure would constitute just about as blatant a disregard of due process as might be imagined.” It is true that the complaint and request for investigation Mr. Schlossberg filed against Mr. O’Rourke was disposed of upon pleadings and that no hearing with proof, within Rule 15, has yet been conducted. Rule 15 makes plenary provision for such a hearing. Upon the record as it came before the Grievance Board that tribunal should not have dismissed the complaint, nor should the Board have proceeded upon its introductory premise that "The facts giving rise to this complaint are largely undisputed.”
The plethora of letters and other items of factual charges and denials the contenders have filed since oral argument suggest clearly that the facts are not "largely” undisputed.
The Grievance Board should have insisted upon conduct and conclusion of an evidentiary hearing pursuant to the procedures Rule 15 provides. In these circumstances I would enter an order reversing dismissal with instruction that the Grievance Board, upon due resolution of all disputed facts, test whatever decision the Board decides to render in light of the authorities cited in Justice Williams’ opinion, namely Glass v State Highway Com ’r, 370 Mich 482 (1963), the latter applying and following Offutt v United States, 348 US 11; 75 S Ct 11; 99 L Ed 11 (1954) and In re Murchison, 349 US 133; 75 S Ct 623; 99 L Ed 942 (1955).
Adams, J., concurred with Black, J.
It appears from the appendices to the complaint in Supreme Court No. 53,217 incorporated by reference in the complaint or request for investigation in this case that Mr. O’Rourke himself was attorney of record in cases involving the Chrysler Corporation subsidiaries.
As to the wholly-owned character of the Chrysler subsidiaries the referenced complaint (Supreme Court No. 53,217)'alleges "Chrysler Financial Corporation is a wholly-owned subsidiary of Chrysler. Car City Insurance Company and Chrysler Credit Corporation are wholly-owned subsidiaries of Chrysler Financial Corporation.” In support thereof there is attached to the brief in No. 53,217 a portion of the Chrysler Corporation 45th Annual Report, December 31, 1969, which includes a Touche Ross & Co. CPA report stating "[w]e have examined the accompanying consolidated balance sheet of Chrysler Financial Corporation (wholly-owned subsidiary of Chrysler Corporation) * * * ” and a reference to Car City Insurance Company as a wholly-owned subsidiary of Chrysler Financial Corporation.
The Code was adopted by this Court on October 4, 1971, and was given immediate effect. The Code is set out in 385 Mich lvi-xc (1971).
See Canons of Professional Ethics, Canon 6, and Canons of Judicial Ethics, Canons 4 and 24 in Honigman & Hawkins Michigan Court Rules (1969 ed).
Mr. O’Rourke participated in the decisions in the cases of Claim of Russell and Chrysler Corporation, App. Docket No. B71-5510-39962, decided November 17, 1971, and Claim of Debucce and Chrysler Corporation, App. Docket No. B71-1104-39565, decided October 11, 1971.
Mr. O’Rourke was requested to disqualify himself, but refused to do so in the case of Taylor and Chrysler Corporation which was before the MESC Appeal Board.
The Supreme Judicial Court of Massachusetts in Beauregard v Dailey, 294 Mass 315; 1 NE2d 481 (1936), held a lawyer serving as a master in a labor dispute should have disqualified himself as he was also attorney of record for one of the parties in an unrelated tort action.
"In determining whether the corporate entity should be disregarded * * * ”, Justice Butzel emphasized the recognized rule that "each case is sui generis and must be decided in accordance with its own underlying facts.” Herman v Mobile Homes Corp, 317 Mich 233, 243 (1947).
The facts in the O’Rourke case relate to whether an attorney who is also a public employee violated a professional or public trust. It is a question of ethics and public policy.
Gledhill v Fisher & Co, 272 Mich 353 (1935), cited by the- Grievance Board relates to whether an owning corporation is liable to a contractor with an owned corporation. These facts obviously bear no similarity to the O’Rourke case. Furthermore, in the Gledhill case plaintiff had not even known of the existence of the owning corporation when it dealt with the owned corporation. Mr. O’Rourke’s relationship with Chrysler Corporation, if that fact were in any way material, was known and protested before the MESC Appeal Board. Incidentally, the Mobile Homes case, supra, considered the Gledhill case and distinguished it from the agency situation in its own facts and found liability.
Burrows v Emery, 285 Mich 86 (1938), relates to whether an individual stockholder in a corporation buying and selling securities was liable for assessment on bank stock held by the securities corporation. These facts equally obviously bear no similarity to the O’Rourke case.
More nearly in point are public rate cases such as People, ex rel. Attorney General, v Michigan Bell Telephone Co, 246 Mich 198 (1929), where the agency relation between American Bell Telephone and Michigan Bell Telephone was considered, and without regard to fraud the separate corporate entity theory was disregarded or Chicago, M & S P R Co v Minneapolis Civic & Commerce Ass’n, 247 US 490; 38 S Ct 533; 61 L Ed 1229; (1918), in which certain railroads owned a terminal railway company, and it was held that an agency relation existed. The United States Supreme Court said:
"In such a case the courts will not permit themselves to be blinded or deceived by mere forms or law but, regardless of fictions, will deal with the substance of the transaction involved as if the corporate agency did not exist and as the justice of the case may require.” 247 US 490, 501.
See also Pfaffenberger v Pavilion Restaurant Co, 352 Mich 1 (1958); Acton Plumbing & Heating Co v Jared Builders, Inc, 368 Mich 626 (1962); Annotation: Disregarding corporate existence, 34 ALR 597, 599.
In Detroit Board of Education v Getz, 321 Mich 676, 678 (1948), we said:
"The interest which will thus disqualify a judge must be such an interest in the subject matter that he will be directly affected through pecuniary or property gain or loss.”
As shown supra this Court in Glass v State Highway Commissioner, 370 Mich 482 (1963) held that keeping a job is such "pecuniary or property gain or loss.” As we have shown this is what is involved in this O’Rourke case.
I do not say that, under Rule 15, an evidentiary hearing must be conducted as a basis for proper disposition of all complaints made under the Rule. New complaints require such'formality or disposition other than by the Administrator or, possibly, by an assigned Hearing Panel. This one though, the charges reviewed, comes fairly within and should have been processed pursuant to sections 15.8 through 15.22 as applicable. | [
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Butzel, J.
Defendant city of Grand Rapids is a municipal corporation with a home rule charter which vests all legislative and administrative power in a city commission. The latter in turn appoints a city manager, who is charged with the administration of the municipality under the direction and provisions of the city commission. He has the power to appoint and remove all subordinate officers and employees of the city. Appointments must be made upon merit and fitness in compliance and in accordance with the civil service provisions of the charter. The charter provides that:
“No employee * * * shall be discharged or reduced in rank or compensation until he has been presented with the reasons for such discharge or reduction specifically stated in writing, and has been given an opportunity to be heard in his own defense. * * * Any employee * * * who is suspended, reduced in rank or dismissed, may appeal to the civil service board.”
We have italicized the word “appeal” as its proper construction presents the real question in the case.
Plaintiff William P. Babcock was assistant building inspector, a position that came under the civil service provisions of the charter. Charges of misconduct were made against him, and written notice thereof was served upon him. He was granted a hearing by the city manager in accordance with his demand. He attended it with his counsel who examined witnesses and the testimony was taken down stenographically and reduced to writing. The manager found him guilty of a number of the charges preferred and notified him of his dismissal. He filed notice of .appeal to the civil service board and demanded a hearing de novo. The board ordered a transcript of the proceedings served on them and had a committee examine the evidence. On February 1,1943, plaintiff’s petition for a hearing de novo was denied, the civil service board finding the action of the manager legal and regular. Petition for mandamus was filed in the superior court of Grand Rapids on February 25, 1943, and the court ordered a hearing de novo. Defendant city of Grand Rapids appeals.
The real question presented on appeal is whether plaintiff is entitled to such hearing de novo before the civil service board. Appellant city of Grand Rapids contends that the word “appeal” has an indefinite meaning, that after, a hearing such as plaintiff has had, it can be reviewed only by certiorari, that the term “appeal” as used means only a review and, where the testimony has been taken down in a regular proceeding before the board, the plaintiff is precluded from raising any other questions than those of law. While it is true that in more recent times the term “appeal” is frequently applied to appeals in the nature of certiorari, mandamus or other methods of review, this does not enlarge the nature of the review.
Upon examining the cases, we conclude that the correct and true meaning of the word “appeal” is a review of a case by a higher tribunal in a trial de novo. In Re Manufacturer’s Freight Forwarding Co., 294 Mich. 57, 70 (36 P. U. R. [N. S.] 329), the court said:
“The term ‘appeal’ was unknown to the common law. It belonged wholly to courts of chancery, and means in its technical and appropriate sense the removal of a suit, and its final determination, from an inferior court, after final judgment in that court, to a superior court, and placing the case in the latter court, to be again tried de novo upon its merits, just as though it had never been tried in the inferior court. Fouse v. Vandervort, 30 W. Va. 327 (4 S. W. 298).”
We believe that when the word “appeal” is used without any limitations as to the nature or method of review, in a statute or charter, it means a trial de novo. In Commissioner of Corporations and Taxation v. J. G. McCrory Co., 280 Mass. 273 (182 N. E. 481), which referred to the Massachusetts law, which in this particular respect is similar to that, of this State, the court said:
“The word ‘appeal’ in our statutes usually has been interpreted to mean a full new trial or an entire hearing upon all matters of fact and questions of law. It is used in contrast to the word ‘review’ which signifies a reexamination of proceedings already had.”
Appellants cite Fricke v. City of Grand Rapids, 278 Mich. 323; Delaney v. Detroit Board of Fire Commissioners, 244 Mich. 64; Public Welfare Commission of Detroit v. Civil Service Commission, 289 Mich. 101, as being contrary to the foregoing statement. We find on examination that the wording of the acts in these cases or the charters involved do not support appellant’s contentions. Reading the charter of the city of Grant Rapids in its entirety, we find that when an appeal is taken, the city civil service board must hold de novo hearings and form their own judgments. The charter provides under title 7, § 1, that no employee shall “be dismissed except by the affirmative vote of a majority of the members elect.” Further, in title 7, § 9, it provides:
“The judgment of such board shall be final and not subject to review in the courts.”
These provisioiis clearly indicate that the board may render judgments. From the very definition of the word, it must try the case de novo to ascertain the facts and arrive at a judgment. See 2 Bouvier’s Law Dictionary (Rawle’s 3d Rev.), p. 1718; Black’s Law Dictionary (3d Ed.), p. 1024. The decision of the city manager is final unless there is an appeal. However, if there is an appeal, the hearing must be de novo and not by certiorari.
The writ of mandamus issued by the trial judge is herewith affirmed, but without costs, a public question being involved.
Sharpe and Reid, JJ., concurred with Butzel, J. Wiest and Bushnell, JJ., concurred in the result.
Grand Rapids Charter, title 7, § 9. — Reporter. | [
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Starr, J.
Enichen-Cain, Inc., a Michigan corporation engaged in the garage and automobile sales business in the city of South Haven, was adjudged bankrupt May 6, 1940. In April, 1941, plaintiff as trustee of said bankrupt began the present suit to recover the value of certain automobile parts, tools, garage equipment, office furniture, and other chattels which, he alleged, defendants had unlawfully converted to their own use. Defendants answered, denying the alleged conversion and plaintiff’s right to recover. The trial court, sitting without a jury, determined that defendants had wrongfully converted such property and that it was of the value of $1,150. Plaintiff was granted judgment for that amount against defendants, jointly and severally.
Defendants did not appeal. However, plaintiff has appealed, contending, in substance, that the judgment was inadequate in amount and against the preponderance of the evidence.
A brief resume of the facts regarding defendants’ ■handling of the property is necessary in preface to our discussion of the testimony relative to its value. In January, 1940, Enichen-Cain, Inc. (hereinafter referred to as the company), was in financial trouble and sought assistance from defendant Oliver Whit-low, who owned the building which it occupied as tenant. Whitlow loaned the company $6,000 for which he took a purported chattel mortgage dated January 11, 1940, covering all or substantially all of its personal property not otherwise mortgaged. In April, 1940, Whitlow foreclosed such mortgage and took possession of the property. It appears that in a chancery suit instituted by Whitlow against Hudson, trustee, and others such chattel mortgage was later determined to be void because of defective execution by the company as mortgagor.
On May 6,1940, the company was adjudged bankrupt. On the same date, May 6th, defendants Albert and Marie Enichen organized and incorporated de fendant Midtown Motor Sales, Inc. On May 7th Whitlow sold the property in question to defendants Albert and Marie Enichen, personally, for $6,000 and took back a chattel mortgage as security. On the same date, May 7th, the Enichens sold the property which they had acquired from Whitlow to said Motor Sales, which issued $5,000 in amount of its stock to the Enichens and assumed the $6,000 mortgage to Whitlow.
Plaintiff presented no testimony as to the value of the property converted. Defendant Whitlow testified that he did not know the “actual value” of the property in May, 1940. He further said:
“On January 11, 1940, I was familiar with the property of the corporation. * * * I told Mr. Enichen at that time that I felt that the property was of value sufficient to stand this $6,000 mortgage. # # *
“In April of that same year I took possession but it stayed right there in my building, continued to be used by the garage. * * *
“I sold this same equipment to Enichen and his wife. The consideration for that sale was $6,000.”
Defendant Albert Enichen, who was an officer of the bankrupt company and one of the organizers of defendant Midtown Motor Sales, testified in part:
“Q. Of what did the assets consist in April, 1940, in the way of physical property at the time that Whitlow was to come in and take it over under his mortgage ?
“A. What parts were left; practically no accessories; and * * * just various jacks and sunken hoists in the garage and built-in spray booth and a few things like that. No used cars. •
“Q. Now in April and May, 1940, what do you say would have been the value of what was left of that property * * * on the market to sell for cash?
“A. Oh, probably from two to three thousand at the most. * * *
“It was worth more to leave it where it was if that could be arranged, because it was a going business and to operate with it naturally it is worth more.
“The parts and equipment could not be sold for more than two or three thousand dollars, and this was based upon the theory of a forced sale. * * * In fixing these values of two to three thousand dollars I gave no consideration to the possibility of being continued as a going business. * * *
“Q. * * * This equipment which was transferred to the corporation Midtown Motors cost that corporation $11,000, didn’t it? * * * That was the cost to the corporation that assumed a mortgage of $6,000 and issued $5,000 worth of their stock— is that right?
“A. Yes.”
A representative of the finance company which had held a chattel mortgage on the property in question until about January 11, 1940, testified regarding the value of the property in part as follows:
“I would say that we couldn’t have gotten more than $2,500 or possibly $3,000 for it if we had foreclosed. * * *
“There was not as much stock on hand as when we made the loan (in August, 1939). * * *
“The valuation of $2,500 to $3,000 that I speak of would be as of the latter part of November or December (1939).”
A garage man who was familiar with the property and who inventoried and appraised it May 2, 1940, testified, in effect, that it was worth about $2,000.
In pursuance of Court Rule No. 37, § 11(c) (1933), plaintiff requested the trial court to file opinion setting forth “the substance of the judgment with a concise statement of his reasons therefor, and * * * the manner in which he has determined the amount. ’ ’ Tbe court’s opinion stated only that " the value of the property converted was $1,150,” and granted plaintiff judgment for that amount. Such opinion does not comply with the court rule or inform us in which manner or by what process of deduction or reasoning the court arrived at the determined value of $1,150.
In reviewing a judgment entered by a trial court sitting without a jury, we examine the record to ascertain whether or not the findings are against the preponderance of the evidence. In Hanson v. Economical Cunningham Drug Stores, Inc., 299 Mich. 434, we said:
“In reviewing a judgment entered by a trial judge sitting without a jury we are limited by the rule laid down in Jones v. Eastern Michigan Motorbuses, 287 Mich. 619. See discussion beginning at page 643. This rule was recently summarized in Eagan v. Edwards, 294 Mich. 260, by the following quotation from Vannett v. Michigan Public Service Co., 289 Mich. 212, 218:
“ ‘We have repeatedly said in cases tried without a jury that the' trial judge is the trier of the facts and may give such weight to the testimony as in his opinion it is entitled to. In such cases we do not reverse unless the evidence clearly preponderates in the opposite direction.’ ”
See, also, Flat Hots Co., Inc., v. Peschke Packing Co., 301 Mich. 331.
In the present case we are confronted with the trial court’s opinion determining the value of the property converted.to be $1,150 and by conflicting testimony which variously estimates the value to be from about $2,000 to $6,000 or more. In view of such testimony showing a minimum value of about $2,000, we are at a loss to understand how the trial court arrived at a value of $1,150.
Plaintiff was entitled to recover the actual value of the property at the time it was converted. In 2 Sedgwick on Damages (9th Ed.), p. 950, § 493, it is stated:
“In an action for the conversion of personal property, the measure of damages is the value of the property at the time of the conversion, with interest.”
In the case of Hautala v. Dover, 176 Mich. 366, 371, we said:
“The measure of damages in a trover case is the true cash value of the property converted at the time and place of conversion, in the absence of any testimony showing a peculiar value in the goods to the owner. ’ ’
See Maycroft v. The Jennings Farms, 209 Mich. 187; Tuttle v. White, 46 Mich. 485 (41 Am. Rep. 175); Ripley v. Davis, 15 Mich. 75 (90 Am. Dec. 262); Ingram v. Rankin, 47 Wis. 406 (2 N. W. 755, 32 Am. Rep. 762); Clarion Bank v. Jones, 21 Wall. (88 U. S.) 325 (22 L. Ed. 542); 4 Sutherland on Damages (4th Ed.), p. 4209, § 1109.
No cash sale of the property was made from which its actual value might be determined. The testimony regarding the chattel mortgage to Whitlow for $6,000, the sale to the Enichens for $6,000, and the sale to Midtown Motor Sales for $5,000 in stock and assumption of the Whitlow mortgage, was admissible in evidence as bearing upon the question of value but wás not conclusive as to the actual value of the property at the time of its conversion.
As the testimony indicates a minimum value of about $2,000, we are obliged.to hold that the trial court’s determination of a value of $1,150 was against the preponderance of the evidence.
The judgment is set aside. A new trial is granted only on the disputed issue relative to the value of the property converted. Either party may present additional testimony as to such value. Plaintiff shall recover costs.
North, C. J., and Wiest, Butzel, Bushnell, Sharpe, Boyles, and Reed, JJ., concurred. | [
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North, C. J.
Plaintiffs’ bill in chancery was filed for the purpose of restraining the defendant Michigan State board of examiners of barbers and the individual members of that board from enforcing certain regulations promulgated by the board under Act No. 309, Pub. Acts 1941 (Comp. Laws Supp. 1943, § 8711-11 et seq., Stat. Ann. 1943 Cum. Supp. § 18.118[1] et seq.), and to test the constitutionality of that act. Plaintiffs are licensed barbers who own and operate barber shops in the city of Detroit, , Wayne county, Michigan. The regulations promulgated by the board of barber examiners under the above-cited act attempt to fix the minimum prices charged by barbers and the hours of opening and closing barber shops in Wayne connty. Tbe title of Act No. 309 and tbe portion of tbe act pertinent to decision herein are printed in tbe margin hereof. Plaintiffs assail tbe validity of tbe act on tbe grounds: (1) that it is violative of tbe dne-process clause of tbe Federal Constitution and of tbe State Constitution; (2) that it is not within tbe exercise of tbe police power of tbe State as having to do with public health, public morals, public safety, or public welfare; (3) that it is class legislation in violation of the State Constitution; and (4) that it is special or local legislation in violation of article 5,- § 30, of the State Constitution and that it contains no provision for its becoming effective in any county other than Wayne when such other county or counties attain a population of 500,000 or more.
The circuit judge before whom the case was heard held Act No. 309, Pub. Acts 1941, unconstitutional and granted plaintiffs the injunctive relief sought. The Michigan State board of examiners of barbers and the individuals composing that board have appealed. Because it furnishes ample ground for disposition of the instant appeal, we consider only plaintiffs’ contention that Act No. 309, Public Acts 1941, is invalid as special or local legislation violative of article 5, §30, of the State Constitution, which reads:
“The legislature shall pass no local or special act in any case where a general act can be made applicable, and whether a general act can be made applicable shall be a judicial question. No local or special act * * * shall take effect until approved by a majority of the electors voting thereon in the district to be affected.”
Under the foregoing constitutional provision, a special or local act cannot become effective “until approved by a majority of the electors voting thereon in the district to be affected.” It is admitted that Act No. 309, Pub. Acts 1941, has not been submitted to or approved by a majority of electors of Wayne county which is the only county in this State having a population of 500,000, notwithstanding section 9 of the act provides: “The provisions of this act shall only be enforced in any county of the State having a population 'according to the last Federal census of at least 500,000.” It is not contended, nor conld it be, that the act in question is valid or effective as a special or local act.
The record convincingly discloses that Act No. 309, Pub. Acts 1941, as passed by the legislature was understood and intended to be effective only in Wayne county; but it also appears from undisputed testimony that the regulations sought to be imposed under the act are no more fitted to or required in Wayne county than in other parts of the State. From this undisputed testimony it definitely appears that the test of whether the regulations sought to be imposed are necessary or proper has no reasonable or logical relation to a county’s population being more or less than 500,000.
Each of the three members of the defendant board of examiners was sworn as a witness. One of them, Ben A. Benson, gave the following testimony:
“Originally when the bill was introduced in the legislature it did cover the entire State. I don’t know why the bill was restricted to Wayne county. * * ' * Unfortunately I know of no reason why, if the act is beneficial in Wayne county, it should not apply to Saginaw, Pontiac, Grand Rapids, Menominee, Escanaba, Sault Ste. Marie and all of the other cities in the State of Michigan.-”
Each of the other two members of the defendant board gave testimony to the same effect. Under such a record the act in question is clearly violative of that portion of article 5, § 30, of the Constitution (1908) which provides: “The legislature shall pass no local or special act in any case where a general act can be made applicable, and whether a general act can be made applicable shall be a judicial question. ’ ’
While unnecessary to decision herein, it may further be noted that by the very terms of the act itself it could never become effective except in Wayne county. The 1940 Federal census was the last Fed eral census prior to the passage of Act No. 309; and according to that “last Federal census” Wayne was the only county in this State having a population “of at least 500,000.” Section 9 of the act provides that it “shall only he enforced in any county of the State having a population according to the last Federal census of at least 500,000.” It is at once obvious that under this provision the act could never become effective in any county other than Wayne. This alone would render Act No. 309, Pub. Acts 1941, unconstitutional as a general or statewide act. Our decision in Mulloy v. Wayne County Board of Supervisors, 246 Mich. 632, is quite controlling of the instant case. We there said:
“We are of the opinion that the act as a whole is so framed that it cannot be made applicable to other counties as they acquire a population of 300,000 or more; and that by its very terms it is made clear it was not intended the act should be put in force in such other counties. No provision is made in the act for so doing. No other conclusion can be reached than that it is local legislation applicable to Wayne county only. The act contains no provision for a referendum, and it has not been submitted to a vote in Wayne county. It violates section 30, art. 5, of the Constitution, and must be held invalid. ’ ’
Other questions presented on this appeal, not being essential to decision, are not passed upon; but for the reasons above noted Act No. 309', Pub. Acts 1941, must be held unconstitutional and plaintiffs granted the injunctive relief prayed. The decree entered in the circuit court is affirmed. No costs will be awarded in this Court because of the public nature of the controversy.
Starr, Wiest, Butzel, Btjshnell, Sharpe, Boyles, and Reid, JJ., concurred.
Act No. 309, Pub. Acts 1941.
Title. An act to give the State board of examiners of barbers jurisdiction to investigate trade practices among barbers, haircutters, barber and haircutting schools and colleges; to enforce such regulations pertaining to reasonable service charges and reasonable hours of operation of barber shops, haircutting shops, barber and hair-cutting schools and colleges as will tend to eliminate unfair and insanitary practices; fixing territorial units for such regulations; regulating barber schools, haircutting schools and colleges and practices therein; and repealing all acts and parts of acts in conflict herewith. * * *
Sec. 3. Whenever it shall appear to the State board of examiners of barbers that unfair or unreasonable economic practices prevail among barbers, haircutters, barber schools, haircutting schools and colleges, in any county of the State of Michigan, which may tend to make insecure the economic status of the barbers and haircutters therein, or that the hours of operation of barber shops and hair-cutting shops are unreasonably long or irregular and tend to make difficult adequate and timely sanitary inspections, or tend to- impair the health or efficiency of barbers or haircutters or to endanger the health or safety of their patrons, it shall be the duty of the board to investigate and determine whether the conditions or practices above mentioned, or any of them, prevail in such county, and if found to exist or to be threatened by conditions existing therein, the board may by official order, after due notice and hearing as provided for herein, promulgate scales of reasonable minimum prices to be charged for barber and haircutting services in such county and may establish reasonable opening and closing hours for barber shops and haircutting shops therein and may make and promulgate such other reasonable orders, rules and regulations as may be calculated to promote the purposes of this act as herein expressed.
If upon investigation, the board finds that any such regulations should be made applicable to 2 or more adjoining counties, the board may include all such counties under 1 order, and if the board finds that regulations to be imposed should vary in different localities within the same county, in order equitably to attain the objectives of this act, the board may make such different regulations for such different localities as will make such order adjustable to differing economic or social conditions therein. * * *
Sec. 9. The provisions of this aet shall only be enforced in any county of the State having a population according to the last Federal census of at least 500,000. | [
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Butzel, J.
The two above-entitled causes against the city of Detroit were consolidated for hearing in the trial court- and also on appeal. In the first case, Warren Township School District No. 7, Macombcounty, sought an injunction to restrain condemnation proceedings brought by defendant to acquire one square mile of land situated in Macomb county and bounded on the south by Eight Mile road, the north by Nine Mile road, the east by DeQuindre road and the west by Ryan road. The land comprises one-quarter of the total area of the school district. Diagonally across from the northeast corner of the proposed site, and about 125 feet distant therefrom, is a large modern two-story school building erected at a cost of $109,000 by the school district. Adjoining it are two grade school buildings owned by plaintiff and also a new IT. S. O. building erected by the United States government at a substantial cost, the latter building being extensively used by the plaintiff for gymnasium, auditorium and social purposes. The school has an enrollment of 910 students; 27 teachers are employed; the classes begin with a kindergarten and run through the eighth grade.
In the companion case, William Agar and other individuals allege that they own and occupy homes in the vicinity of the proposed airport. The plaintiffs also include a Lutheran congregation which owns a church site near the school building. A structure on the site is already being used. The church expects to erect a larger- building, also to be used for school purposes. It values the property at the present time at $12,000.
There is a tall chimney on the school grounds at least 60 feet in height, the exact dimensions not being shown by the record. Eight Mile road is the dividing line between the city of Detroit, in Wayne county, and Macomb county. It is claimed by defendant, and not denied by plaintiffs, that the present airport of the city of Detroit is inadequate and it has become necessary for the city to acquire a site for a larger one. All plaintiffs, however, claim that the building and the subsequent operation of such an airport in the immediate vicinity of their properties would destroy the use for which they were acquired and are being employed. They show that the airport, if used for the larger airplanes, would cause such a nuisance because of the noise, light, vibration, and general disturbances incident to the operation of such an airport and airplanes in landing and taking off that plaintiffs will be deprived of the peaceful use and quiet enjoyment of their respective properties without due process of law. Although serious charges were made and testimony was given to substantiate them by plaintiffs, the city of Detroit offered only one witness, Brother Amian, who teaches in a school opposite the present airport in the city of Detroit, and who testified that the number of pupils at the school had increased notwithstanding the noise from the airport. The city made a timely motion to dismiss on the ground that an airport was not a nuisance per se, and that, therefore, its construction should not be enjoined. The motion was granted at the conclusion of plaintiffs ’ proofs. The city was within its rights in not offering any further testimony although plaintiffs’ case showed a possible threatened nuisance to some of the plaintiffs, and particularly to the school district, if large airplanes were flown in close proximity to their respective properties.
We shall limit our discussion almost entirely to the'case in which the school district is the plaintiff, as the testimony mainly covered this case. General principles laid down in this opinion are applicable to the case brought by the individual plaintiffs, if conditions they now claim are threatened should hereafter arise. Plaintiffs have undoubtedly given positive warning to the city that the airport may become a nuisance, and the charge of laches may not be brought against them should it become necessary for them to bring another action after the airport is in operation. The city proceeds at its peril. It should be mindful of the case brought against it by the Northwest Home Owners Association, Northwest Home Owners Ass’n v. City of Detroit, 298 Mich. 622, wherein we held that the conduct and operation of a garbage incinerator in a certain resi dential district was a nuisance and we enjoined its further use until means could be found for operating it without creating a nuisance. In a previous case, Sommers v. City of Detroit, 284 Mich. 67, we declined to enjoin the proposed construction and operation of the same garbage incinerator since it was represented at that time that it could be maintained without being a nuisance.' Sometimes a war is lost, though a previous battle may have been won. It would be unfortunate indeed if the city, after spending a very large sum for an airport, should later be enjoined from using it for larger airplanes.
As many of the questions involved are presented to us for the first time in this State, we believe a discussion may be beneficial, particularly in view of the possibility of further litigation, should the occasion arise.
Until recently there was no need to question the old maxim that “he who owns the soil has it even to the sky and to the lowest depths. ’ ’ Latterly, however, the courts have universally recognized its fallacy when applied to the use of the atmosphere for flight purposes at a height which did not materially interfere with the free use and enjoyment of the land below. The ownership of the space above the lands and waters of this State is by statute declared to be in the several owners of the surface underneath subject to the right of flight as defined by statute. 1 Comp. Laws 1929, § 4813 (Stat. Ann. §10.23). Flight by aircraft over the lands and waters is lawful unless at such low altitudes as to interfere with the then existing use to which the land or water is put by the owner, or unless so conducted as to be imminently dangerous to persons or property lawfully on the land or water beneath. 1 Comp. Laws 1929, § 4814 (Stat. Ann. § 10.24). Similar laws and the right of flight over lands have already been the subject of litigation. The law is summed up in 1 Restatement, Torts, chap. 8, § 194, as follows:
“An entry above the surface of the earth, in the air space in the possession of another, by a person who is traveling in an aircraft, is privileged if the flight is conducted
“(a) for the purpose of travel through the air space or for any other legitimate purpose,
“(b) in a reasonable manner,
“ (c) at such a height as not to interfere unreasonably with the possessor’s enjoyment of the surface of the earth and the air space above it, and
“(d) in conformity with such regulations of the State and Federal aeronautical authoritiés as are in force in the particular State. * * *
“Comment on Clause (c):
“g. Under the rule stated in this section, only those flights are privileged which are conducted at such a height as not unreasonably to interfere with the possessory interest in the land. Thus, a flight, although otherwise conducted in a reasonable manner, for a legitimate purpose, and in conformity with all applicable local regulations, if conducted at such a low height as to cause reasonable fear or substantial annoyance to occupants of the land or to frighten cattle or other animals thereon in such a way as to cause them harm, or to endanger the surface of the land, or persons, trees, structures or other things thereon, or to interfere with the possessor’s legitimate use of the air space, is not within the privilege. As to the actor’s liability if he thus invades the column of air above another’s land near the surface in the course of making a forced landing, see section 159, comment g.”
An illustration is given as follows:
“4. A flies in an airplane over B’s house within 200 feet of the roof, thereby causing annoyance and fear of harm to B and the other occupants of B’s house. A is a trespasser.”
In Batcheller v. Commonwealth, 176 Va. 109 (10 S. E. [2d] 529), quoting in part from Thrasher v. City of Atlanta, 178 Ga. 514 (173 S. E. 117, 99 A. L. R. 158, 1934 U. S. Av. 166), a case frequently cited, it was held that:
" ' An airport is not a nuisance per se although it might become such from the manner of its construction or operation. Mere apprehension of injury from the falling of planes is not sufficient to authorize an injunction against aerial navigation over the property of the complainant.’ * * *
" ' Even if the establishment of the airport should result in a depreciation in the value of the fine residences and country homes in the community where the airport was proposed to be established, that fact afforded no reason for the denial of the permit applied for. Aviation is a lawful business and the owner of real estate has the right to establish an airport thereon if it is properly located and properly operated notwithstanding for aesthetic and sentimental reasons it may not be agreeable to persons' owning fine country homes in the community.”
In Swetland v. Curtiss Airports Corp., 41 Fed. (2d) 929, modified on other grounds in 55 Fed. (2d) 201 (83 A. L. R. 319), the court said:
" Evidence has been offered upon the issues as to whether or not the property of the plaintiffs will decrease in value if the location of the airport upon the adjoining property is not enjoined. We find it unnecessary to determine this issue, for if it be conceded that the property of the plaintiffs will decrease in value if the airport is permitted to operate, that alone would not entitle the plaintiffs to an injunction. Hazlett v. Marland Refining Co. (C. C. A.), 30 Fed. (2d) 808; 46 C. J. 682, note 25. If the airport is not a nuisance, its operation may not be enjoined because to some extent tbe value of tbe plaintiffs’ property will be decreased for the purpose to which it is now devoted. It is a matter of conjecture and speculation whether the property of the plaintiffs will increase in value for other purposes, and whether the plaintiffs will ultimately sustain actual financial loss because of the operation of the airport. It may be conceded that the property of the plaintiffs will be less desirable for the purposes of a country estate. No one will contend that-the plaintiffs will have the same enjoyment of peace and quiet which they have had in this locality for nearly a quarter of a century. This they have been able to have because of the use to which the adjoining property was devoted, but they at no time had a right to prevent the adjoining owner from using this property for any reasonable purpose. They have been fortunate in that they have been able to enjoy their country estate as they have for so long a time. They must now yield to change and progress of the times.”
On the other hand, even though an airport is not a nuisance per se, it may become a nuisance or be ■ responsible for one if .the airplanes using it cause a nuisance or a continuing trespass.
In Burnham v. Beverly Airways, Inc., 311 Mass. 628 (42 N. E. [2d] 575, 1942 U. S. Av. 1), the court stated that flying over the house and surrounding grounds of plaintiffs at a level below 500 feet was certain to produce noise to which the plaintiffs have a right to object, even if in view of all the factors it did not amount to a nuisance. The court further commented upon the fact that the master had found that the noise of an airplane differs only slightly in intensity in altitudes up to 500 feet. It was held that flights of airplanes from and to airports above dwelling houses and the surrounding grounds ad joining the airport at less than 500 feet were trespasses justifying an injunction and nominal damages against the corporation operating the airport.
The case is distinguished from Smith v. New England Aircraft Co., 270 Mass. 511 (170 N. E. 385, 69 A. L. R. 300), wherein the flight was over unused brush and woodland.
In Vanderslice v. Shawn, — Del. Ch. — (27 Atl. [2d] 87, 1942 U. S. Av. 11), the court held (quoting from syllabus [Atl.]):
“An airplane flight over another’s land so low as to interfere with the then existing use to which the land is put, whether in landing, taking off, or otherwise, is expressly outside the statutory definition of ‘lawful flight’ and is an unprivileged intrusion in the space above the land constituting a ‘trespass.’ # * #
‘ ‘ Extensive flying at low altitude, accompanied by excessive noise and occasioning unreasonable annoyance to occupants of the land below, and apprehension of danger on their part, constitutes an element of ‘nuisance’ in' that it interferes substantially with the enjoyment of the property by the occupants.”
The frequent operation over complainant’s land of airplanes using adjacent airport was enjoined as constituting trespass, notwithstanding that no substantial physical injury to the property had been done, and there was an absence of fences and boundary markers between the land and airport.
The case of Mohican & Reena, Inc., v. Tobiasz, 1938 U. S. Av. 1, was decided by the superior court of Hampden County, Massachusetts. Although this was not a court of last resort, the opinion has been frequently referred to in opinions of other courts. It was held that flying over a children’s camp at such a low altitude and so frequently that it interfered with the instruction, study, pageants and other activities of the camp, that it prevented the voices from being heard and largely destroyed the usefulness of the camp and resulted in the parents refusing to send their children back to the camp because of the danger, noise and distraction occasioned by the airplanes, was a nuisance. The court went so far as to prohibit flying closer than 500 feet laterally from the boundaries of the camp or flying at less than a height of 1,000 feet when near the camp. The same reasoning would apply with equal cogency to a large modern school house built at great expense, though we would not be willing to enjoin flying at such a distance as not to constitute a nuisance.
Article 13, § 1, of the Constitution of this State (1908), provides as follows:
“Private property shall not be taken by the public nor by any corporation for public use, without the necessity therefor being first determined and just compensation therefor being first made or secured in such manner as shall be prescribed by law. ’ ’
Article 13, § 2, of the Constitution (1908) further provides that the necessity for using such property and the just compensation to be made therefor shall be ascertained by a jury of 12 freeholders residing in the vicinity of such property, et cetera. The necessity for the taking of the property for the proposed site in the instant case has not yet been determined.
The rules and regulations of the Michigan board of aeronautics (effective, as amended, April 1,1942) provides in Section 6, p. 16, that:
“Aircraft flying over the lands and waters of the' State of Michigan shall comply with the regulations of the United States civil aeronautics administration as relate to air traffic. ’ ’
The civil aeronautics administration of the United ■ States department of commerce provides that exclusive of taking off or landing upon an airport or other land area, aircraft shall not be flown below certain minimum safe altitudes of flight. The minimum provided for over property, such as plaintiffs’, is 500 feet. Civil Aeronautics Bulletin No. 22 (7th Ed.), October, 1943, p. 8. Even if it be claimed that the proposed flights over plaintiffs’ properties by airplanes would occur only while planes were taking off or landing, the frequency of such flights and their proximity to plaintiffs’ respective properties might nevertheless cause such a nuisance as to destroy their peaceful use and quiet enjoyment.
The city .'in its answer to the second bill' of complaint quotes from the opinion of Mr. Justice Cardozo in Hesse v. Rath, 249 N. Y. 436 (164 N. E. 342), upholding the right of the city to build an airport, as follows:
“Aviation is today an established method of transportation. The future, even the near future, will make it still more general. The city that is without any foresight to build the ports for the new traffic may soon be left behind in the race of competition. Chalcedon was called the city of the blind, because its founders rejected the nobler site of Byzantium lying at their feet. The need for vision of the future in the governance of cities has not lessened with the years. The dweller within the gates, even more than the stranger from afar, will pay the price of blindness.”
At the oral argument the counsel for the city stated that the city, might not use the proposed airport for the larger or heavier planes which necessarily fly much lower when landing or taking off, and could possibly cause a nuisance to plaintiffs. If the airport cannot be used for very large airplanes, the city might find itself at the end of a side line, from which smaller craft would have to be flown to other cities which had the foresight to provide airports of a proper size in a locality free from obstacles so as to accommodate transcontinental and the other larger airplanes. "We take judicial notice of the tremendous increase in the size of airplanes during the past few years.
On a motion for dismissal, it will be assumed that the pertinent, credible and uncontradicted testimony on behalf of plaintiffs is true. The testimony does raise some doubt as to whether the use of the airport by larger planes landing or taking off at a low altitude may not destroy the usefulness of the school property. It was shown that at the present airport located in the city there have been as many as 2,000 airplanes landing at or taking off in a day. It can be reasonably expected that with the growth of airplane traveling, a new and larger airport will be much busier. The present city airport is much smaller in size than the contemplated one. The length of an airport’s runways is highly determinative of its suitability for more modern planes. An equally important factor is the distance of the nearby obstacles from the airport. The civil aeronautics administration has established as a glide ratio for large municipal airports the figure of 40 feet horizontally to 1 foot vertically. This means that the safe distance of an obstacle can be figured by multiplying its height in feet by 40; the resultant figure is the distance from the airport that the obstacle should be. This, however, is a minimum if the full runway is used. The testimony shows the prevailing winds will be from the southwest towards the northeast or the northeast towards the southwest a large part of the time.’ The direction of the wind determines the direction of the landing or take off. Plaintiff’s witness testified that 27 out of every 80 planes will come from over the school house, and thus 1 out of every 9 will take off in that direction and 1 out of every 5 will land from there.
The length of the runways of the proposed airport will depend largely on the way they are designed. The northeasterly end of the one used when the winds are from the southwest or northeast may be 1,000 feet away from the school house. It may be only 250 feet away should the city decide to make runways as long as possible. The school house is approximately 125 feet distant from the northeast corner of the proposed airport. The entire length of the runway is more frequently not used but, under adverse conditions, if the school were only 1,000 feet away from the end of the runway, which would be about 6,200 feet long, and if it were laid out pointing directly at the school house, using the safe running distance and safe gliding angle of 40 to 1, as propounded by the civil aeronautic administration, a very large airplane, requiring 4,500 feet take-off or landing run, might be only 67% feet off the ground while passing over or very near the school .house, or only 7% feet above the chimney and 37% feet above its roof. If the runway extended from the extreme southwest to the extreme northeast corners of the proposed airport site, its length would be over 7,000 feet, but that might prove very impractical and dangerous as the termini of runways usually are kept at a safe distance from the street. If only 4,000 feet of runway were used for a large plane, and assuming such adverse weather conditions that the plane would be required to go a distance of 40 feet to rise 1 foot, plaintiffs contend that the plane would come so near the school house as to bring terror and consternation to the children and possibly to the parents, when they learned of it; the noise would be so deafening, and the vibration so great, as to interrupt the proper conduct of a school and distract its pupils. We can readily see how such conditions would constitute a nuisance and a continuing trespass.
The testimony further showed that planes in landing would have to allow about 4,500 feet of the runway to come to a rest. It is impossible to estimate with any degree of exactness the proximity that an airplane would come to the school as there are so many variable conditions. With instrument flying or under unfavorable weather conditions, the plane would come much nearer the school house than otherwise. From the record, it would appear that the planes might come so near the school house a large part of the time that it would undoubtedly constitute a nuisance. However, we are unable to state how near to the school house the planes would come, but if they do come so close as to constitute a nuisance, the further use of the- airport for larger planes would be enjoined. The city should carefully consider such a possibility, which plaintiff urges as a probability, before proceeding to the enormous expense of building the airport, in the event that a jury should find that, as the city claims, the site designated is necessary.
The testimony shows that in the report of the city planning commission of Detroit, it was recommended that a very large site he obtained and that parkways or marginal areas be bnilt along the borders of the airport so that the large number of people who are attracted to airports to watch the planes through interest or curiosity would also have the advantage of recreational and park facilities. In this way property in the immediate vicinity would not suffer damage because of the noise, light, vibration, et cetera, but its value might be enhanced because of the surrounding parks. The proposed site abuts the northern boundary of the city of Detroit. Although it possibly might be more expensive to acquire more than a square mile as a site further from the city, the difference between the cost of the proposed site and a larger one a few miles further away from the city could not be very great inasmuch as the value of land, as a rule, is in an inverse ratio to its distance from the business center of the city. It would require only a few more minutes to reach an airport 2 or 3 miles further away. If the present roads were insufficient for express highways, they could be widened so as to permit a rapid rate of speed. Such a plan was suggested in the report of the city planning commission, which was offered as an exhibit, but excluded as such by the trial judge. A marginal area is recommended by one of the few authorities on the subject (Woo'd on Airports, pp. 10 and 304). The city maintains that even if it were to condemn property for a larger site more distant from the city and use the outer margins for park purposes, the cost of maintenance of such parks would be very great. The city and the counties separately and jointly find the need of new parks and recreational centers and the reasonable expense of running them has not been a deterrent; It is also worth further consideration that parks may enhance the surrounding land values, so that with larger valuations more taxes will be paid. This as well as many other questions discussed herein are legislative matters and are not to be determined by us, although they may be pertinent in the selection of an airport site. We only mention them in discussing the subject.
Airplanes may be flown at proper heights over the ■land below and even though there may be noises and annoyances caused thereby, they will be considered “damnum absque injuria.” If planes are flown at such heights as are prescribed by the authorities, as a rule they will not be enjoined. However, airplanes may not land or take off at low altitudes and in such close proximity to the property of others so as to cause a nuisance or a continuing trespass.
Defendant claims that plaintiffs should not have brought their bills of complaint but should make their objections in the condemnation proceedings now pending. Plaintiffs are not parties to these proceedings nor is it necessary for them to become such in order to protect their rights. The condemnation proceedings are for the purpose of taking private property, not -public property. In Battle Creek & Sturgis R. Co. v. Tiffany, 99 Mich. 471, we quoted from a large number of cases which held that “to defeat the attainment of an important public purpose, to which lands have already been subjected, the legislative intent must unequivocally appear.” Also, see City of Detroit v. Judge of the Recorder’s Court, 253 Mich. 6.
Other questions raised by appellee -need not be discussed in view of our decision.
In coming to our conclusions, we have not considered possible technological improvements in air planes that may enable them to land and take off in a very much smaller space, and that may reduce their noise. We must consider conditions as they are now and do not indulge in speculations as to the future.
The judge was correct jn dismissing the bills of complaint, as the proposed airport is not a nuisance per se, and whether it will become a nuisance in fact can only be determined after operation. See Sommers v. City of Detroit, supra, and cases therein cited.
The order dismissing the bills of complaint is affirmed, hut without prejudice to the rights of plaintiffs, or any of them, to seek injunctive or other relief should the airport be built and its operation or that of airplanes landing at or taking off from such airport result in a nuisance or continuing trespass. The questions presented being of a public nature, no costs will be allowed.
North, C. J., and Starr, Wiest, Bushnell, Sharpe, and Boyles, JJ., concurred. Reik, J., did not sit.
In an article on ‘ ‘ Some Economics of Airports, ’ ’ appearing in the American Society of Civil Engineers, Transactions, vol. 107 (1942), pp. 804, 810, it is stated:
“Mathematical Analysis. In this paper attention is centered on the landing fields for land planes. The size of an airport depends, first, upon the obstructions in the vicinity. Until such obstructions are removed the landing area is reduced by some multiple of the height of the obstruction. In 1925 it was officially ruled that no area could be used for take-off or landing purposes whose distance from an obstruction was less then seven times the height of the obstruction. This rule was supplanted by a ratio of 10:1 very shortly; then by 15:1; and at present by 20:1; but the new (tentative) obstruction ratios are 30:1 on runways not to be used for instrument landings, and 40:1 for those on which instrument landings are proposed. In this paper, therefore, it will be assumed that all such obstructions have been removed, and only the net dimensions will be considered available. ’ ’ | [
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Bushnell, J.
Plaintiff Virginia Cooper is the mortgagee in a chattel mortgage, executed by Frank J.' LaBuda as mortgagor on November 4, 1938. This mortgage was given to secure the payment of a promissory note in the sum of $500, with 6 per cent, interest thereon. The mortgage was duly recorded and covers personal property located in a beer tavern then owned and operated by LaBuda.
Subsequently one Fred Teichman, Jr., became LaBuda ’s partner, the venture was unsuccessful, LaBuda filed a bill in chancery for the dissolution of the partnership, and a receiver was appointed. The partnership had a number of creditors, some of whom had liens on the partnership property superior to that of plaintiff. In addition, the State, county and city also had liens for unpaid taxes. On April 28, 1939, the court, after notice to creditors, authorized the receiver to sell the physical assets at private sale at a price of not less than $2,300, and to execute and deliver an assignment of the State liquor license to the purchaser. The defendant, Fred Teichman, Sr., who owns the building in which the tavern is located, was the purchaser at the sale.
Sometime after the judicial sale of the partnership assets, plaintiff sought foreclosure of her chattel mortgage in equity. A decree was entered on May 15, 1941, in which it was determined that plaintiff had a valid mortgage on the personalty enumerated therein in the amount of $575. This decree further provided that defendant Fred Teichman, Sr., was “subrogated to the rights of various prior lien-holders to the extent of the amount advanced” by him in payment of these liens. The decree also contained an order of reference of the matter to a circuit court commissioner for the sole “purpose of determining the exact amount due Fred Teichman, Sr.”
No appeahwas taken by plaintiff from this decree. The matter was referred, objections were filed to the findings and recommendation of the commissioner; on motion of the defendant the findings were stricken, and the commissioner’s report vacated. After the filing of a written stipulation of the parties as to the exact amounts of the several liens, a second decree was entered on November 12, 1942, in which the recitals and determinations of the decree of May 15, 1941, were repeated and the exact amount of defendant’s subrogation fixed. The decree of November 12, 1942, differs from the decree of May 15,1941, only in that the 1942 decree establishes the amount plaintiff shall pay defendant for the prior liens to which defendant was subrogated by the 1941 decree.
Plaintiff did not appeal from the 1941 decree, but has appealed from the 1942 decree, asserting that defendant as a purchaser at a judicial sale is not entitled to be subrogated to prior liens, and that his action was in effect a fraudulent attempt to wipe out mortgage liens. Defendant asks that plaintiff’s appeal be dismissed because the decree of May 15,1941, was a final and appealable one in which the only question left for future determination was the amount of the prior liens, and that plaintiff, by her appeal filed November 17, 1942, can only question (which she does not) the correctness of the amounts of the several liens in question.
For the sake of clarity the two decrees are printed in the margin hereof.
Decision turns on whether the decree entered May 15,1941, was a final and appealable one.
Prior to Webber v. Randall, 89 Mich. 531, “there appears to be some little confusion in the cases as to what is a final decree.” '.In that case the court held that a decree which settled the rights of both parties and left nothing further to be done than to determine the amount due complainant upon an accounting made upon a basis fixed by such decree was final and appealable. See, also, Perrin v. Lepper, 72 Mich. 454, 541.
In Hake v. Coach, 105 Mich. 425, involving a partnership accounting, a decree was made adjudging the rights of the parties and ordering a reference to a special commissioner to state an account. Coach appealed and Hake moved to dismiss the appeal. The court, in holding the decree appealable and denying Hake’s motion, said:
“In the decree in the present case the defendant is deprived of a substantial right if his claim is supported by the evidence taken. Under his answer and cross bill, he claims that he is entitled to all the profits made upon a certain transaction, and that he is also entitled to all the interest in certain lands or the timber on certain lands which he purchased individually, and- for his individual use. The order or decree of the circuit court makes final disposition of these questions, and directs an accounting thereon,”
In Commissioner of Insurance v. Lloyds Insurance Co. of America, Inc., 287 Mich. 599, the problem was again discussed and the rule repeated that “the right to appeal is determined not by the form of the order or decree but by its effect.”
The first decree in the instant case made a final disposition of the questions of defendant’s subrogation and plaintiff’s right of foreclosure. It also fixed the basis for determining the exact amount of subrogation. The second decree only added thereto a determination of the amount due defendant. Therefore, the decree entered May 15,1941, was a final and appealable one.
Can the present appeal, filed November 17, 1942, be considered as an application for delayed appeal from the decree of May 15, 1941 ?
Court Rule No. 57, § 3 (1933), provides that this court — “may in its discretion, within such further time as may be permitted by law, grant leave to appeal, upon showing, supported by affidavit, that there is merit in the claim for appeal and that the delay was not due to appellant’s culpable negligence.” (Italics ours).
See, also, Court Rule No. 72, § 1 (g) (1933).
The time permitted by law is fixed by 3 Comp. Laws 1929, § 15510 (Stat. Ann. 1943 Rev. § 27.2610), and provides that the time for perfecting an appeal shall not be extended for more than one year from the entry of the order or decree appealed from, and “may be extended, not exceeding six months from the expiration” of one year, by this court. Obviously more than one year and six months had elapsed between the date of entry of the first decree and the date of filing the instant appeal. A delayed appeal cannot therefore be allowed.
The motion to dismiss plaintiff’s appeal is granted, with costs to appellee.
North, C. J., and Starr, Wiest, Butzel, Sharpe, Boyles, and Reid, JJ., concurred.
DECREE
“At a session of said court held in the Wayne county building, Detroit, Michigan, on the 15th day of May, A.D. 1941.
“Present: ■ Honorable Leland W. Carr, circuit judge.
“The plaintiff, Virginia Cooper, having filed her bill of complaint seeking the foreclosure of a chattel mortgage, and answer having been filed thereto, and testimony having been taken, the court having heard Samuel H. Rubin in behalf of the plaintiff, and Clarence 'C. Donovan in behalf of defendant, Ered Teiehman, Sr.; this court does find:
“1. That the plaintiff, Virginia Cooper, has a good, valid and subsisting chattel mortgage covering the following described property.
1 37-ft. front bar, mahogany
1 24-ft. back bar, mahogany
1 24-ft. work bench
1 Temprite refrigerating system
1 Pre-cooler refrigerator
1 Universal refrigerator, 6 ft.
21 wood walnut tables
84 wood walnut chairs
4 walnut booths
1 National cash register
1 air compressor
6 Neon signs
‘ ‘ Curtains and any and all other items of equipment now on the said premises and used in connection with the aforesaid business, including all kitchen utensils, glasses, et cetera which property is lo eated at 3702 E. Forest avenue, Detroit, Wayne county, Michigan, and there is due and owing to the plaintiff the sum of $575, and the plaintiff is entitled to foreclosure thereof.
“2. Court further finds that the defendant, Fred Teiehman, Sr., is subrogated to the rights of various prior lienholders to the extent of the amount advanced by the defendant, Fred Teiehman, Sr., in of certain liens. '
"It is ordered, adjudged and decreed that this matter be referred to William J. Cody, a circuit court commissioner for the county of Wayne, for the purpose of determining the exact amount due Fred Teiehman, Sr., and;
" It is further ordered, adjudged and decreed that upon payment to the said Fred Teiehman, Sr., of such amount found to be due by the circuit court commissioners, and after confirmation of his findings by the circuit court, the said Fred Teiehman, Sr., shall deliver possession of the property hereinbefore described to the plaintiff herein, free and clear of any claims of the said Fred Teiehman, Sr., or that said Fred Teiehman, Sr., pay to said plaintiff within 10 days after report of the commissioner is filed, the sum of $575.
ordered, adjudged and decreed that upon plaintiff herein obtaining possession of the said properties aforesaid, the circuit court commissioners aforesaid shall sell the same in the usual manner provided for the foreclosure of chattel mortgages, and out of the proceeds paid to the plaintiff the amount found to be due her under this deeree, together with her costs and charges, and that the said circuit court commissioner mate report thereof to court.
" Leland W. Cask,
Circuit Judge,”
DECREE
(Filed November 12, 1942)
(Title of Court and Cause)
“At a session of said court held in the Wayne County Building, Detroit, Michigan, on this 12th day of November, 1942, A.D.
“Present: Hon. Leland W. Carr, Wayne circuit judge.
“The plaintiff, Virginia Cooper, having filed her bill of complaint, seeking the foreclosure of a chattel mortgage, and the defendant, Fred Teiehman, Sr., having filed answer thereto, in which the defendant, Fred Teiehman, Sr., asserted that he did purchase all of the assets of the LaBuda Cafe at a temporary receiver’s sale, authorized by the circuit court for the county of Wayne, and in which answer, the defendant, Fred Teiehman, Sr., asserted that against the said property, there existed three mortgages superior to the mortgage of Virginia Cooper, and proofs having been taken in open court and counsel having appeared for respective parties, in court did on the 15th day of May, 1942, enter a decree finding:
“1. That the plaintiff, Virginia Cooper, has a good, valid and subsisting chattel mortgage covering the following described property:
1 37-ft. front bar, mahogany
1 24-ft. back bar, mahogany
1 24-ft. work bench
1 Temprite refrigerating system
1 Pre-cooler refrigerator
1 Universal refrigerator, 6 ft.
21 wood walnut tables
84 wood walnut chairs
4 walnut booths
1 National cash register
1 air compressor
6 Neon signs
“Curtains and any and all other items of equipment now on the said premises and used in connection with the aforesaid business, in- eluding all kitchen utensils, glasses, et cetera which property is located at 3702 E. Forest, Detroit, Michigan, Wayne county, and that there is due and owing to the plaintiff, the sum of $575, and the plaintiff is entitled to foreclosure of the same.
“2. Finding that the defendant, Fred Teichman, Sr., is subrogated to the rights of various prior lienholders to the extent of the amount advanced by the defendant, Fred Teichman, Sr., and by the receiver in payment of certain prior liens.
“3. Referring this case to a circuit court commissioner, the provisions of said decree being made a part of this decretal order as if herein set forth verbatim.
“4. The circuit court commissioner having filed his report, that the said Fred Teichman, Sr., did not advance any sum or sums of money in payment of prior liens and objections having been filed by the Fred Teichman, Sr., to said report, wherein the said Fred Teichman, Sr., claimed that he paid to the receiver at a judicial sale, the sum of $2,300, and asking that he be subrogated to the rights of the prior lien holders to the extent of said $2,300 and this court having heard counsel does hereby:
“a. Overrule the recommendation of the circuit court commissioner, and overrule the objection filed by the defendant thereto, but finds as follows:
“b. That the plaintiff, Virginia Cooper, has a good, valid and subsisting chattel mortgage covering the following described property:
1 37-ft. front bar, mahogany
1 24-ft. back bar, mahogany
1 24-ft. work bench
1 Temprite refrigerating system
1 Pre-cooler refrigerator
21 wood walnut tables
84 wood walnut chairs
4 walnut booths
1 National cash register
1 air compressor
'6 Neon signs
“Curtains and any and all other items of equipment now on the said premises and used in connection with the aforesaid business, including all kitchen utensils, glasses, et cetera which property is located at 3702 E. Jefferson [Forest?] avenue, Detroit, Michigan, Wayne county, and there is due and owing to the plaintiff, the sum of $575 and the plaintiff is entitled to foreclosure thereof.
“c. That the defendant, Fred Teichman, Sr., purchased the assets known as the LaBuda Cafe, including a Class ‘O’ whisky license by the Michigan liquor control commission thereon, at a judicial sale and paid therefor the sum of $2,300 to the receiver.
“d. That the receiver paid out of the said $2,300, the following liens:
M. L. Leacock $465.79
Mereier and Clark 359.26
Jack Frank 432.01
“e. That the Fred Teichman, Sr., after his purchase at judicial sale and confirmation thereof, paid 1938 city taxes, $91.59; sales tax, $125; county of Wayne tax, $43.45; and Lee Display Company for Neon signs, $115 to the foregoing names being superior liens to plaintiff’s mortgage.
“f. This court does therefore order and adjudge that unless the defendants, Frank J. LaBuda and Fred Teichman, Sr., forthwith pay the plaintiff, Virginia Cooper, the sum of $575 and costs taxed at $42, the plaintiff, Virginia Cooper, is entitled to proceed to foreclosure of • her mortgage hereinbefore set forth, provided, however, that the Fred Teichman, Sr., is subrogated to all of the sums herein-before set forth, and that upon payment of said sum hereinbefore set forth by the plaintiff to the said Fred Teichman, Sr., the said Fred Teichman, Sr., shall deliver to the plaintiff the property hereinbefore described, and that the same shall be foreclosed in accordance with law.
“Leland W. Carr,
Circuit Court Judge.” | [
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Bushnell, J.
This case arose out of a collision between an automobile driven by plaintiff’s decedent, Joseph Waling, and a bus operated by de fendant city of Detroit. The city appealed from a judgment entered upon the. verdict of the jury in favor of plaintiff in the sum of $5,000.
At about 5:45 a. m. on November 17, 1941, Waling was on his way to work at the Ford Motor Company. He was driving westerly on Schoolcraft avenue in the city .of Detroit, and defendant’s bus was proceeding northerly on Northlawn avenue. Two other fellow employees were riding in-the Waling car. There were no passengers in the bus. At the time of the collision it was dark, but the intersection was well lighted, the visibility was good, and the weather was clear. In addition to the occupants of the car driven by Waling, there were other eyewitnesses who were in an eastbound car approaching the intersection. The testimony shows that Waling came up to the intersection at a speed of about 20 to 25 miles an hour and had ample opportunity to observe traffic ponditions. As neither street is a through thoroughfare, neither the car nor the bus stopped before entering the intersection. The collision occurred in the northwest part of the intersection and Waling was severely injured and died several days after the accident. There is some question whether the bus was traveling at about the center or on the left-hand side of Northlawn, but all agreed that it was moving at a speed of about 30 to 35 miles an hour.
A police officer who arrived at the scene a few minutes after the accident took photographs before the vehicles were moved. These were made a part of the record. He testified that Waling told him that he saw the bus just as he entered the intersection and before it entered the intersection, that “he. turned to his right and applied the brakes.” The officer said there was nothing to obstruct Waling’s view of the approaching bus. One of Waling’s pas-* sengers said that he observed the headlights on the bus and they appeared to be 30 or 40 feet away. Another passenger in the "Waling car said he looked both ways as they approached the intersection and he first saw the bus on the left side of the center of the street about 35 to 50 feet away, and that when Waling’s car was about to leave the intersection the bus lights were shining right into the back of the Waling car. The bus then swerved to the left and struck them with its right front corner when they were about 2 feet from the northwest curb. Waling’s car was struck on its left side back of the front door.
Defendant moved for a directed verdict on the ground that plaintiff had failed to prove either any actionable negligence of the bus driver or freedom from contributory negligence on the part of Waling. The court reserved judgment and submitted, the question of defendant’s and plaintiff’s decedent’s negligence to the jury. After verdict, the court denied defendant’s motions for judgment non obstante veredicto and for a new trial.
Defendant contends on appeal that the trial judge erred in denying its several motions and that the jury was erroneously charged with respect to the questions of plaintiff’s decedent’s contributory negligence and his “right of way.” The trial court quoted the statute (1 Comp. Laws 1929, § 4712 [Stat. Ann. § 9.1580]), which reads:
“When two vehicles enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right. ’ ’
The court then continued:
“I charge you that if you find from the evidence that both the bus driver and the automobile driven by plaintiff’s husband entered the intersection at approximately the same time, then the bus would be required to yield the right of way to the car driven by plaintiff’s husband for the reason that the vehicle of plaintiff’s husband was approaching from the right side of the bus, and if you find that a violation of the right of way by the, bus driver was the proximate cause of the accident, and if plaintiff’s husband was free from contributory negligence, then defendant would be liable and plaintiff may recover. ’ ’
We have repeatedly held that a driver, having the statutory right of way, cannot proceed heedlessly into a place of danger, and the court therefore properly explained to the jury that it could not find the defendant liable because of its bus driver’s violation of the right of way, unless plaintiff’s decedent was free from contributory negligence. We find no error in the court’s charge to the jury when read in its entirety.
In determining whether plaintiff’s decedent was guilty of contributory negligence as a matter of law, we must accept the testimony in the light most favorable to her. Rathburn v. Riedel, 291 Mich. 652. In that case the court pointed out that it is an impossibility to lay down precise rules by which we may measure all acts of contributory negligence, and that some cases must of necessity stand or fall on their own facts. A state of facts should not result in a determination of negligence as a matter of law where reasonable minds may differ upon those facts. Adams v. Canfield, 263 Mich. 666.
Viewing the testimony in this manner, the trial judge was correct in declining to instruct the jury that plaintiff’s decedent was guilty of contributory negligence as a matter of law and in denying defendant’s motion for judgment non obstante veredicto. Pelham v. Keip, 306 Mich. 500.
Tbe verdict of tbe jury is supported by tbe evidence and tbe judgment entered tbereon is affirmed, with costs to appellee.
North, C. J., and Starr, Wiest, Butzel, Sharpe, Boyles, and Reid, JJ;, concurred. | [
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Sharpe, C. J.
This is an appeal involving the construction of a will. In August, 1942, Sarah G. MacDonell executed a will leaving a trust estate for the benefit of appellant, Donald Neil MacDonell, and his brother, Francis John MacDonell. The trust for each son is identical and reads as follows:
“The other one-half of the residuum of my estate not herein specifically disposed of, I give, devise and bequeath to my executors and trustees hereinafter named, in trust, nevertheless, for the following purposes:
“To invest, reinvest and keep the same invested, as hereinafter provided, and to collect and receive the income and profits from and of the principal of said trust estate, and after paying therefrom all proper expenses of administration of said trust estate and all taxes of any kind properly payable upon or in respect of said trust estate or the income therefrom, to pay out of the balance of said income, hereinafter referred to as net income, the sum of $200 per month to my beloved son, Donald Neil MaeDonell, of the city of Detroit, county of Wayne and State of Michigan, for whose benefit said trust estate is hereby established, until he reaches the age of 35 years.
“Upon my said son reaching the age of 35 years, this trust estate established for his benefit shall cease and terminate, and my said executors and trustees shall then convey, assign and deliver to my said son, Donald Neil MacDonell, the beneficiary thereof herein named, all and singular the said trust property, absolutely and forever, free from the provisions of said trust.”
The powers given to the trustees of the trust are as follows:
“I hereby give to the executors of this, my will, as trustees of the trusts and each of the trusts created by this, my will, full power and authority to hold, manage, care for, invest and reinvest the property of each of the said trusts created by this, my will; to sell, mortgage, pledge or lease the same, or any part thereof, and to reinvest the same, hereby giving and granting to them full power and authority to do all things necessary or proper in the handling and management of the property of each of said trusts, including the power to sell, lease, mortgage, pledge and convey the same and to reinvest the same without applying to any court for authority so to do.
“Also, I give to my said executors and trustees full power and authority to collect all income, rents, issues and profits thereof, and to apply the same as far as may be necessary to tbe payment and discharge of all taxes, assessments and other charges lawfully imposed upon each of said trust estates created by this, my will, or any part thereof, or' upon the income thereof, whether the same be assessed to the trustees or the beneficiaries of any of such trusts, to defray the costs of any items or charges for maintenance which may be necessary or reasonable; hereby giving to said executors and trustees full authority and discretion in the premises, and also to pay from each of said trust estates the reasonable compensation to said- executors and said trustees.
“Any stock dividends that may be declared upon any stock belonging to any of the trusts created by this, my will, shall be treated as principal and not as income.
“Further, if, and in the event that, any corporation or company whose stocks or securities constitute or are held as a part of the principal of any trust hereby created shall be reorganized, or consolidated with any other corporation or company, or. opportunity shall be offered to exchange any of its stock or securities .for other stocks or securities issued or to be issued by it, or for the stocks or securities of any other corporation or company, I give to my said executors and trustees full power and authority, in their discretion, upon such terms and conditions as they may deem advisable, to exchange any such stocks or securities so held by them for the stocks or other securities of any such reorganized or consolidated corporation or company, or for other stocks or securities of such corporation or company, or for stocks or other securities of any such corporation or company.
“I will and direct my said trustees, in the event that any emergency should arise wherein they should deem it prudent for either of my said sons to have at any time more than the monthly income herein provided for them respectively out of their trust estates, that they shall have the power and authority, in their absolute discretion, to pay to either of my said sons sufficient out of the principal or income of his trust to take care of such emergency.
“The executors and trustees shall not be liable for any loss, diminution or shrinkage that may come to the trust property, either in principal or interest or arising from any investment, provided the loss has not occurred through the gross mismanagement or willful default of said executors and trustees.”
At the time of the trial in the circuit court the bulk of the estate consisted of a furnished apartment building on West Grand Boulevard in the city of Detroit. The building is approximately 45 years old and contains 69 apartments. It is 3 stories high, of brick construction with wooden sills and window sash. The 3 floors above the basement are served by one self-serve elevator. After the payment of ordinary current operating expenses and repairs the net revenue is approximately $18,000 per year.
In the petition filed by Donald Neil MacDonell it is alleged that at the time the Vill creating the trust was executed he was a single man; that he is now married and has 1 child; that due to his physical condition and the increased cost of living, his monthly expenses are approximately $650; that prior to filing his petition he was employed and earning $140 per month and that he is now in debt to the extent of approximately $4,800.
The trial court entered an order dismissing appellant’s petition and in an opinion stated:
“Out of the net revenue this petitioner has been punctually paid his $200 per month, up to the present time. The Detroit Trust Company is the fiscal agent of the trustees. Under the testimony, which is not disputed, explained, or contradicted, there is now a balance in the income account of this petitioner the sum of $1,569.29. * * *
“We therefore have a situation where the will in question does not in express terms direct the accum ulation of rents. It does authorize the trustees to make expenditures necessary in their judgment for the upkeep of the body of the estate. It does authorize the trustees to allot to each of the beneficiaries sums which in their judgment are made necessary by emergencies. And, the testimony does indicate that large amounts of money chargeable against this petitioner’s share of the net revenues of the estate have actually been paid to him. Therefore, it is a necessary conclusion that there has been no accumulation out of rents under this will by the trustees except in the amount of this $1,569. * * *
“The trustees desire to accumulate a reserve fund as against necessary repairs and replacements of parts of the building, which they say are imminent. They desire to accumulate out of surplus rents, a sum of $3,500 in each trust estate. The reason they give is that the building is old and in bad repair; and that it is going to be, within the near future, necessary, in order to maintain its earning power, to make large amounts of expensive replacements. The elevator is old and needs to be replaced. The cost will be in the neighborhood of $2,500 to $3,000. The building needs to be repainted, especially the wooden sills and sash. Much interior decorating needs to be done. Refrigeration in each apartment of the building needs-to be replaced. Much of the furniture, if not all of it, is practically worn out and needs replacement.
“Under all those circumstances I think it perfectly reasonable that the trustees exercise their discretion in the accumulation of the reserve fund which Mr. O’Donnell has suggested as being a reasonable reserve fund. I do not think it unreasonable or an abuse of discretion for the trustees handling a building with a gross revenue of around $36,000 a year, to have an operating fund of $7,000, which should be replaced from time to time out of the revenues of the building. * * *
“These sections of the statute contemplate an express direction for accumulation of rents. There is no express direction for accumulation of rent under this will, and under the testimony there has been no unreasonable accumulation of rents. I think that the only accumulation that has been shown by the evidence is perfectly proper and for the benefit of the trust estate. I think it perfectly proper for the trustees to pay operating expenses, and to pay current repairs; and as facilities like an elevator wear out, to replace these facilities, all out of current income. They are all to be lumped together for the purpose of this operation as operating expenses.”
In appealing Donald Neil MacDonell urges that under and by virtue of the following statutes the accumulation of income beyond the minority of the beneficiary applies to the trust in the will and the trustees are governed thereby.
“An accumulation of rents and profits of real estate, for the benefit of 1 or more persons, may be directed by any will or deed sufficient to pass real estate, as follows:
“First. If such accumulation be directed to commence on the creation of the estate out of which the rents and profits are to arise, it must be made for the benefit of 1 or more minors then in being, and terminate at the expiration of their minority:
“Second. If such accumulation be directed to commence at any time subsequent to the creation of the estate out of which the rents and profits are to arise, it shall commence within the time in this chapter permitted for the vesting of future estates, and during the minority of the persons for whose benefit it is directed, and shall terminate at the expiration of such minority.” (CL 1948, § 554.37 [Stat Ann § 26.37].)
“If in either of the cases mentioned in the last preceding section, the direction for such accumulation shall be for a longer time than during the minority of the persons intended to be benefited thereby, it shall be void as to the time beyond such minority; and all directions for the accnmnlation of the rents and profits of real estate, except such as are herein allowed, shall be void.” (CL 1948, § 554.38 [Stat Ann § 26.38].)
“When in consequence of a valid limitation of an expectant estate, there shall be a suspense of the power of alienation, or of the ownership during the continuance of which the rents and profits shall be undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the person presumptively entitled to the next eventual estate.” (CL 1948, § 554.40 [Stat Ann § 26.40].)
The trustees urge that the above quoted statutes do not apply as under the will the trustees may, in their discretion, use all of the income and may invade the corpus of the trust, if necessary, to meet the needs of the beneficiary; that the management of the trust estate being committed to the trustees, a temporary withholding of income to meet the reasonably anticipated expenses of the trust is not unlawful; and that the corpus of the trust estate consisting of both real and personal property, does not come within the prohibition of the statute.
A brief filed in behalf of the guardian ad litem of the minor and unborn children of petitioner urges that the testatrix, by failing to provide a valid direction for the accumulation of rents and profits, has caused her will to come within the terms of CL 1948, § 554.40.
In the supplemental petition filed in the probate court, the relief asked for is the payment of net income as well as a construction of the provisions of the will relating to the accumulation of income. The probate court entered the following order:
“1. That this court has jurisdiction to construe the will in this proceeding with reference to the claim of said beneficiary to be entitled to receive the entire net income from said trust.
“2. The provisions of the statute prohibiting the accumulation of rents and profits from real estate for a period longer than the minority of a beneficiary, being CL 1948, §§ 554.37, 554.38, 554.40 (Stat Aim §§ 26.37, 26.38 and 26.40), are hereby ordered to supersede any contrary interpretation of the -said will which directed the payment of $200 per month out of the net income to said beneficiary and which made no specific direction as to the payment of the surplus of the net income, and said trustees are hereby directed to comply with said statutory provisions and pay the entire net income to said beneficiary in monthly instalments from and after the date of this order and to pay forthwith any net income which may have been accumulated since the accounting date set forth in the third annual account of the trustees which has heretofore been approved by this court.
“3. That the petition to require the trustees to pay to said beneficiary the sums heretofore paid upon a mortgage against the trust property is denied for the reason that said payments were set forth in the first 3 annual counts of said trustees which have been allowed by the court without objection and which payments are not now open to question.”
The sections of the statute relating to the accumulating of rents and profits insofar as the present case is concerned read as follows:
“An accumulation of rents and profits of real estate, for the benefit of 1 or more persons, may be directed by any will or deed sufficient to pass real estate, as follows:
“First. If such accumulation be directed to commence on the creation of the estate out of» which the rents and profits are to arise, it must be made for the benefit of 1 or more minors then in being, and terminate at the expiration of their minority:
“Second. If such accumulation be directed to commence at any time subsequent to the creation of the estate out of which the rents and profits are to arise, it shall commence within the time in this chapter permitted for the vesting of future estates, and during the minority of the persons for whose benefit it is directed, and shall terminate at the expiration of such minority.” CL 1948, § 554.37 (Stat Ann § 26.37).
“If in either of the cases mentioned in the last preceding section, the direction for such accumulation shall be for a longer time than during the minority of the persons intended to be benefited thereby, it shall be void as to the time beyond such minority; and all directions for the accumulation of the rents and profits of real estate, except such as are herein allowed, shall be void.” CL 1948, § 554.38 (Stat Arm § 26.38).
It is to be noted that the above statute refers to rents and profits from real estate. The trustees urge that inasmuch as the corpus of the trust estate consists of both real and personal property, it does not come within the prohibition of the statute. We are not in accord with this view as it appears that the income from the realty is approximately 99 per cent, of the total income.
In Eldred v. Shaw, 112 Mich 237, the accretions or income came from a mixed fund of land and personalty. We there said:
“It was clearly intended by the testator that these accretions should constitute a fund of which his grandson should receive the income, and that the principal, at complainant’s death, should go in the same direction as the real estate. It follows that this fund must be invested under the order of the court, and the income paid to the complainant.”
In the case at bar the trustees did not have an absolute power to make the determination of whether there would he an accumulation or not. The will hy implication directed an accumulation. The trustees were given an option under certain circumstances to dispose of accumulation as well as a part of the corpus of the estate. The discretion of the trustee was not absolute. In our opinion there is accumulation when there is net income available and it is not distributed within a reasonable time. The record shows that at the time the cause was heard in the circuit court there was a balance in the rental account of $1,569. This sum is an accumulation of rents and profits and should be distributed in accordance with the statute. We are not in accord with the decision of the trial court that the statute contemplates an express direction for accumulation of rents. An implied direction for accumulation of rents is also void under the statute. In this appeal we do not have the question of whether or not the trustee should establish a reserve account for repairs to the apartment building. This question was not properly before the circuit court. Possibly an appropriate petition in the probate court could accomplish the desired result.
The judgment of the circuit court in dismissing petitioner’s petition is reversed and the cause remanded to the circuit court with instructions to remand it to the probate court for proceedings in harmony with this opinion. No costs are allowed as the construction of a statute is involved.
Bushnell, Boyles, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Butzel, J.
Plaintiff, as trustee of the estate of John Raymond Bergin, bankrupt, sought to establish a lien on the joint property of defendants Bergin and his wife, Frances, in the amount of $2,300, representing payments of $500 and $1,800 made by Bergin from his individual earnings on 2 mortgages respectively $500 and $2,000 theretofore placed on the joint property by Bergin and wife. At the timé of the payments there was outstanding against Bergin a 1935 judgment, duly renewed in 1945, which with interest exceeded the amounts paid on the mortgages. An unsuccessful effort had been made to collect the judgment. Bergin was insolvent at the time of his payments on the mortgages. The value of the Bergin interest in the joint property at the times the mortgages were executed was thereby decreased, and when payments were made by Bergin on the mortgages from his individual earnings the value was correspondingly increased. It was equivalent to Bergin talcing his money and instead of paying his outstanding debts, placing it into jointly held property, and thus attempting to place it beyond the reach of his creditors. The value of the jointly held prop.erty exceeds the aggregate amount of defendants’ exemptions, the balance due on the mortgage and the amount of the lien claimed. The proceeds from the $2,000 mortgage had been used by Bergin and wife to purchase an automobile which was held in their joint names, and which Bergin also claims as exempt on the ground that he uses it in the furtherance of his business.
The trial judge held that the plaintiff was entitled only to a lien on the automobile, subject to whatever exemptions Bergin might be entitled. The court in its opinion cited the cases of McCaslin v. Schouten, 294 Mich 180, and Dunn v. Minnema, 323 Mich 687 (7 ALR2d 1099), to the effect that when an insolvent debtor uses assets or makes payment on what constitutes an investment in property in joint names so that it becomes beyond the reach of creditors, he has worked a constructive fraud against which relief should be granted.
In the McCaslin Case, defendant used his individual funds to reduce the mortgage debt on his home, which was entireties property, thereby increasing the equity in entireties property and preventing his creditors from reaching his individual funds. In the Dunn Case, the defendant bankrupt used his funds to continue payments on a jointly-held land contract upon which he had begun payments before he became insolvent. We allowed a lien to be imposed on that part of the value of the property, over and above the value of the homestead exemption, which had been augmented by payments made subsequent to insolvency. We believe that these 2 cited cases firmly establish plaintiff’s right to impose a lien on the home of the parties. As frequently happens, there may be some slight difference in facts, but there is but little in the rule established which entitles plaintiff to a lien in the instant ease. Also, see Newlove v. Callaghan, 86 Mich 297, and Caswell v. Pilkinton, 138 Mich 138.
The defendants, while conceding the correctness of the principle of the 2 cases cited by the trial judge, contend they should not apply here because the mortgage liabilities were incurred after the date the bankrupt became insolvent. The uniform fraudulent conveyance act (CL 1948, § 566.11 et seq. [Stat Ann § 26.881 et seq.]) covers conveyances made during insolvency with the effect of diminishing the debtor’s assets to the damage of his creditors. The creditor here was just as much damaged as he would have been had the encumbrance existed at the time the bankrupt became insolvent. We find no merit in defendants’ claim that the rule of the 2 cases was limited to the creation and building up of a tenancy by the entireties during insolvency, not the mortgaging of an existing entireties estate subsequent to the date of insolvency.
The decree of the lower court is reversed and one will be entered as prayed, giving plaintiff a lien on the jointly-owned realty in the amount of defendant Bergin’s payments from his undivided funds on the mortgage debts, plus costs of both courts, but subject to the small balance, if any, due on the mortgage and defendants’ exemption under the law. The decree shall provide for the payment' of the lien within 4 months and remanding the case to the trial court for the enforcement of the lien and for foreclosure in case of nonpayment.
Dethmers, Carr, Btjshnell, Sharpe, Boyles, and Reid, JJ., concurred.
The late Chief Justice North did not sit.
See CL 1948, § 623.73 et seq. (Stat Aim and Stat Ann 1951 Cum Supp § 27.1572 et seq.).—Reporter. | [
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Bushnell, J.
This is an appeal from a decree dismissing a bill of complaint filed by the Northwest Home Owners’ Association, Inc., and certain property owners, against defendant Shore-Severs Company, to restrain it from using the west 21.42 feet of lot 361 and lots 362 and 363 of Robert Oak-man’s Turner and Ford Highway Subdivision, located at the northwest corner of Livernois avenue and Oakman boulevard for other than residential purposes.
The property in question is presently being used by defendant for parking automobiles in connection with its garage and salesrooms immediately adjoining this property to the north. Defendant’s place of business faces Livernois and the property in question faces on Oakman boulevard, formerly known as Ford Highway. The restrictions imposed upon the property are as follows:
“All lots fronting on Ford Highway are hereby expressly restricted to single residences. No dwelling shall be erected on any lots fronting on Ford Highway, the cost of construction of which shall be less than $5,000.”
Robert Oakman’s amended Turner and Ford Highway Subdivision contains 606 lots, all located west of Livernois. The Livernois frontage, consisting of lots 576 to 606, is now used for business pur poses. However, lots 573, 574 and the northwest 21.42 feet of lot 575 facing on Oakman and located on the southwest corner of that street and Livernois are still residential property by reason of a determination of this Court in Northwestern Home Owners’ Association v. Sheehan, 310 Mich 188, decided November 30, 1944. In that case plaintiffs William C. Sprau and wife, Bertha, were also plaintiffs.
Defendant urges that from the date when Sprau first occupied his home in 1927, the change in the character of Livernois has been “dynamic and dramatic,” due to the widening of Livernois and its transformation into “a heavily traveled main business thoroughfare traversing a congested area in the city of Detroit.” It is argued that this change in the character of the street was recognized by this Court as early as 1931 in its opinion in Austin v. Van Horn, 255 Mich 117, which had to do with the restrictions in another subdivision on the east side of Livernois.
The development of property in this vicinity was described in detail in the Sheehan Case, and, according to the testimony in the record before us, conditions have not materially changed since that case was decided.
Appellee also argues that there has been a complete waiver of the building restrictions by plaintiffs and appellants.
As said in the Sheehan Case:
“We have frequently stated that each case involving restrictions must stand by itself as the facts so widely differ in each one.”
See, also, Putnam v. Ernst, 232 Mich 682, and Boston-Edison Protective Ass’n v. Goodlove, 248 Mich 625.
We do not have the same latitude, however, where we are confronted with authority presenting almost identical facts. While Northwestern Rome Owners’ Association v. Sheehan is not res judicata as to the parties in this action, its similarity to the instant case is so great that decision there is controlling here. It has to do with the same restrictions and concerns lots just across the street, which are in the same subdivision. The record does not support the conclusion that there has been any waiver on the part of plaintiffs and appellants.
The decree of the trial court is vacated and one may be entered here granting plaintiff a permanent injunction restraining any violation of the restrictions on the lots in question by defendant. Costs to appellants.
Sharpe, C. J., and Boyles, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Butzel, J.
Plaintiffs, Henry and Mary Etherington, in 1934 acquired 40 acres of land in the township of Au Gres, county of Arenac, State of Michigan, to-wit:
“Southwest quarter of the northwest fractional quarter of section 18, town 19 north, range 6 east.”
At the time of purchase, plaintiffs and their grantors inspected the property with the aid of a Mr. Baikie, who was not a surveyor but supposedly familiar with such matters, being county drain commissioner. The 40-acre parcel is bounded on the west by State Highway M-65 and on the.south by US Highway No 23, and it is conceded that the true west quarter post of the section is found at the intersection of the 2 highways. Locating such post, Mr. Baikie measured east from it along US-23 for a distance of 1,484.34 feet to what he believed to be the southeast corner of the parcel. The parties there placed a stake 75 feet north from the center of the pavement. We shall refer to this hereinafter as the Baikie stake.
On July 3,1940, plaintiffs, desiring to sell 100 feet of frontage on US-23 at the southeast corner of the forty to Faye E. Castonguay, again went on the property, and measuring from the Baikie stake, chained along the highway to á point 100 feet west thereof where they placed another stake denoting the southwest corner of the Castonguay property. We shall refer to this as the Castonguay stake. The right-of-way of the Detroit & Mackinac Railroad rims through plaintiffs’ land some 1,100 feet north and parallel to US-23, and it was understood that such right-of-way would constitute the northern boundary of the Castonguay property. The deed to the Castonguay parcel read as follows:
“Commencing at the SE corner of the SW 1/4 of NW 1/4 of section 18, town 19 north, range 6 east, thence 1,100 feet north, thence 100 feet west, thence 1,100 feet south, thence east 100 feet to beginning.”
It will be noted that the Castonguay deed was given with reference to the southeast corner of the forty, not with reference to the established southwest quarter post or to the Baikie stake. The Castonguays took without further survey and so far as can be ascertained from the record they have considered their property lines to be properly set out in relation to such stake.
Members of the family of Royal and Lottie Bailiff, defendants herein, having purchased land from plaintiffs in the southwest part of the forty, defendants were desirous of buying 200 feet of frontage adjacent to the Castonguay property. Early in March of 1942, both of plaintiffs, defendant Royal Bailiff and his father, Clarence Bailiff, went to the property for the purpose of marking out such plot. Just what happened at this time is disputed. Plaintiffs testified that the parties measured 100 feet from the Baikie stake as a means of locating the Castonguay stake, then chained 200 feet west from the Castonguay stake and placed a similar stake and a root at that point; that it was understood that the property would run as far north as the Castonguay property, that is, to the railroad right-of-way. Royal Bailiff, on the other hand, testified that he saw no actual measurements being made (although Clarence Bailiff and plaintiffs may have made some); that he observed no stakes; that his intention was to rely upon the description in the deed given him. A later statement made by the same witness indicates that he was actually aware of the existence of stakes, but he consistently stated his property was bought subject to a correct survey. Plaintiffs had stated that if a survey was to be had, defendants would have to pay for it. Clarence Bailiff also testified that the parties were unable to find the Baikie stake; that they measured instead from the southwest corner of plaintiffs’ forty, bordering on State Highway M-65 to the southeast corner and then back to the property in question; that although some measurements were taken, the land being cheap (the 200 foot frontage sold for $50) the parties did not pay much attention to the measurements, just understood that the southwest corner of defendants’ property would be 300 feet from the southeast corner of the forty, and determined with reference to it. The parties having' examined the property,’ the deed thereto was executed on March 16,1942, and read as follows:
“A piece of land commencing at a point 100 feet west from the southeast corner of the SW 1/4 of NW 1/4, section 18, T 19 N, R 6 B, thence 1,100 feet north, thence 200 feet west, thence 1,100 feet south, thence 200 feet east to point of beginning.”
It will be noted that the property was again described with reference to the southeast corner. At the time of the deed, there were no structures on the Castonguay property to indicate the location of the Castonguay west line, other than the aforementioned stake. No effort was made at that time to locate the northeast and northwest corners of defendants’ parcel.
Between 1942 and 1948, defendants’ parcel and the Castonguay parcel were improved and ditches and fences were established in accordance with the stakes set out by the plaintiffs. At no time was the location of the parcel questioned. However, in 1948, defendants contemplated the building of an onion storage warehouse and before undertaking such project had their property surveyed. The surveyor, Mr. Cooke, found by his calculations that the true southeast corner of the property was 146 feet west of where Mr. Baikie had supposed it to be in relation to the west quarter post. The result of the survey, if followed, would be to move all previously established property lines which had been set up in relation to the southeast corner 146 feet west of where they had been supposed to be, and defendants would thus be entitled to 146 feet of the frontage plaintiffs had supposed to be theirs.
On. being informed of the results of the survey, Mrs. Castonguay stated that she would take no action. Evidently the State of Michigan, which owns the forty adjoining the Castonguay piece has likewise taken no action. Defendants, however, have consistently sought to establish the survey as the true one.
On April 18,1948, defendant Royal Bailiff took the results of the survey to plaintiffs and expressed to them his intention of relying thereon and having his house moved on the disputed strip. What was said during the rest of the conversation is in dispute. Royal Bailiff states that plaintiff Henry Etherington said that the survey was all right if Cooke did it, as he was one of the best surveyors around, that he would hurry to move his cabins off the disputed strip, and made no objection or statement that he would contest the survey. Etherington, however, testified that he said that something must be wrong; that he would look into the property situation and have it surveyed; that he did not agree to the moving of defendants’ buildings; that he stated he would hurry and move the cabins only if he found out the survey was right. He also- introduced impartial testimony that he had contemplated moving the cabins as early as 1946 and hired a contractor to move them in March, 1948, before the Cooke survey, so that his subsequent removal of them was not as a result of the survey.
Soon thereafter, Etherington went to Cooke and asked about a survey to be made of the -whole property, but for some reason proceeded no further with one. He then had Mrs. Castonguay, an employee of the State conservation department, try to obtain information in regard to the true property line. He delayed for some time waiting for word through her, then, evidently feeling there was no way to avoid the larger expexxse of a survey, arranged to have the property surveyed in September of 1949.
In the meantime, defendants bad moved quickly to take possession of the disputed strip. Plaintiffs5 cabins were moved sometime between April 28 and April 29, 1948, and about the same time basements were dug for both defendants.and plaintiffs. Plaintiffs contend that they knew nothing of the basement defendants proposed to build on the disputed area. Defendant Poyal Bailiff testified that soon after the discussion of the survey, they discussed the 2 basements ; but plaintiff Henry Etherington testified that on April 28th he went to see the progress of his basement at which time no basement had been dug for defendants.
Just which basement was dug first would seem to bear on the question of notice. The excavator was paid by plaintiffs for their job immediately before it was fully completed (April 28,1948), and by defendants after their job was done (April 30,1948). PIowever, he was unable to testify as to which basement was dug first. Mr. Swartzentruber, who moved the cabins at this same time, positively testified that plaintiffs’ was dug first.
Plaintiffs testified that, for a number of reasons, they did not pass defendants’ property again until the 11th of July, inasmuch as they were living some distance away at the time. On their return from Canada at this time, they also noticed that defendants had moved their house and outbuildings during .June and begun construction' of the onion storage warehouse. Defendants claim that plaintiffs made no objection to the buildings on their return; plaintiff Henry Etherington attributes this to his reluctance to argue. A postcard sent from Canada to defendants was introduced in evidence and would indicate that plaintiffs still believed in early June that a solution of the boundary difficulties could be reached to their satisfaction, and adds credence to the claim that they did not know of defendants’ actions. Plaintiffs themselves commenced their home in August and finished building it that year. No building has been done after 1948 to the present on or near the disputed property.
The Holmes survey, which was completed for plaintiffs on May.l, 1950, indicated that there was only 24.33 feet of overlap from the true southeast corner. Soon thereafter, on May 22, 1950, the parties tried to reach an amicable settlement of their disputes but failed. There is testimony that at a conference, although defendants admitted the existence of the-stakes, they claimed they took the land pending a survey and not in relation to any stakes.
On September 2, 1950, plaintiffs filed their bill of complaint asking for reformation of the 1942 deed to conform with what they believed the intention of the parties to be at the time of sale. They did not introduce the Holmes survey and at no time on trial or appeal have attempted to rely on it. Defendants introduced the Cooke survey and in addition argued that plaintiffs are now' barred by equitable principles from asserting title to the disputed strip. On May 26, 1951, the court decreed reformation of the deed so that it should read in accordance with the original measurements from the west quarter post, as fol-' lows:
“A piece of land commencing at a point 1,184.34 feet east of the west quarter-post of section 18, T 19 N, R. 6 E, thence north 1,100 feet, thence east 200 feet, thence south 1,100 feet, thence west 200 feet to point of beginning, excepting therefrom” (right-of-way, et cetera).
It also decreed that defendants be given 60 days in which to remove their buildings from all other properties.
Defendant admits that his property was “pointed ont” to him and that he surrounded his property with ditches and fences generally in accordance therewith. That there were stakes of some kind is also indicated by the testimony. It was also understood as to the total area to be sold, and that it was to be adjoining the Castonguay piece of property. The trial court seemed to feel that there was sufficient evidence that the parties intended to purchase the tract now specified in the reformed deed, We believe this is the most logical conclusion from all of the testimony.
Although def endant claimed he had no idea of his side boundaries, it is difficult to believe he built fences and ditches without such an idea. It is true that no side boundaries were indicated but it would áppear that they could be determined easily from the deed, knowing the railroad right-of-way to be the northern boundary, and the highway to be the southern boundary, and determining the southwest and southeast corners of the parcel and measuring due north to the right-of-way. We fail to see how failure to specify a northeast or northwest corner in view of the other provisions of the deed could be an obstacle. •
There is abundant authority for reforming a deed or mortgage which, through error, fails to express the result of the meeting of the minds of the parties, particularly when it is clear that the description fails to embody the clear, undisputed visual standard of the parties. In re Moore’s Estate, 292 Mich 198 (7 NOCA NS 332); Farabaugh v. Rhode, 305 Mich 234. The trial court found there to be a visual standard, incorporating the use of the Baikie -measurements. Although there is .conflicting evidence, we find that the trial judge was reasonable in his conclusion, and in the absence of a clear showing of error we will not disturb his findings. Under these circumstances, a consideration of the correctness of the Cooke survey- or any other survey is irrelevant.
Defendants point out that the Castonguay parcel by survey overlaps defendants’ parcel and that the Castonguay deed, therefore, should be reformed at the same time defendants’ rights are determined. It is unquestionably difficult to attempt to determine proper boundary lines as between only 2 land owners when, inevitably, other property holders in the forty will be affected. However, the boundary between Castonguays and Bailiffs is a matter in which plaintiffs have no concern. It is within defendants’ power to initiate the proper proceedings to determine such a boundary. In the instant case, we are empowered only to decide the matter before us: That is, the reformation of the deed given to defendants.
For the same reason, the trial court was correct in excluding evidence that plaintiffs claimed the Holmes, survey to be correct to their advantage with respect to a boundary with the owner adjoining them on the west. That owner is not joined as a party here. Although the dispute between all of these parties will be resolved .by a solution of the same problems (the intent of parties, or the correct location of the southeast corner) they are not properly before us and we cannot adjudicate questions that are not before us.
Defendants contend that they were led by plaintiffs to believe that plaintiffs would accept the Cooke survey as the correct one, and that the building on the disputed strip was done in pursuance of such belief. The testimony as to whether or not there-was reliance is contradicted in almost every respect: As to the conversation that took place in plaintiffs’ house on April 18th; plaintiffs’ knowledge of the subsequent activities of the defendants, particularly the digging of the basement and the moving of the buildings; and why plaintiffs waited so long to chai lenge the- survey. It is useless to review this testimony here. In a situation of this nature, where it is impossible to determine from the record what the true facts are, we give great weight to the findings of the trial court who had the opportunity to see and hear the witnesses firsthand. He stated:
“The only situation under the facts in this case where an estoppel could possibly have arisen was at the time of and actions subsequent to the conversation in April, 1948 when defendants told plaintiff that by reason of a survey defendants had procured, the latter owned land west of the line that had been accepted by the parties for 6 years as defendants’ west line, and were going to move on, and that their survey would stand law. Thereupon plaintiff said something must be wrong and he would look into it. In quick succession, defendants proceeded to have a basement dug on the disputed strip and their house moved thereon. In my opinion the defendants unquestionably relied upon their survey in so doing, and certainly not upon any act, representation or admission of plaintiff, nor upon his silence, for none of these elements was present.”
We are bound to accept the findings of the trial court as correct in the absence of a clear showing of error. None has been made here. Plaintiffs are not estopped to contend that the standard which should be used in measuring the holdings of the respective parties was the visual one set out by them previous to the delivery of the deed.
Although in proper cases a court of equity will consider hardship as a factor in its determination, this is not the case for the application of such a doctrine, despite the fact that defendants will suffer losses if forced to move their property. This situation calls for the application of the equitable doctrine that where 1 of 2 innocent persons must suffer loss, it must be borne by that one of them who by his conduct has rendered the injury possible. The trial court found that defendants moved their buildings on the disputed strip without permission of plaintiffs and,. as stated above, we accept that finding as correct. Having done so, they must take the consequences of their actions, which are the cost of moving the small buildings from the strip and any loss on account of the excavation.
Defendants contend that even assuming they do not have the legal title to the 146-foot disputed strip, the court erred in giving them only the right to remove the improvements therefrom within 60 days; that, instead they should be able to salvage the full value of the improvements, either by having the value of the improvements determined and the owner of the land required to pay the other the amount so determined, or, at their option, having the value of the land determined and defendants pay plaintiffs this value and taking possession of the land.
Defendants cite Whitehead v. Barker, 288 Mich 19, in which it was held that one who places improvements on another’s land is entitled to such relief if there are 3 concurrent essentials:
“1. He must have held possession under color of title.
“2. His possession must have been adverse to the title of the true owner.
“3. He must have acted in good faith. 16 Am & Eng Encyc of Law (2d ed), 79-83.”
In the Whitehead Case, we also quoted the United States supreme court as having defined a bona fide possessor as one not only who supposes himself to be the true proprietor of the land but who is ignorant that his title is contested by some other person claiming a better right to it.
It can hardly be said that defendants were ignorant that their title was contested by plaintiffs and that they thus acted in good faith. We therefore find that the order of the trial court was equitable and in accord with the facts as found.
The decree of the trial court will be affirmed, with costs to plaintiffs.
Dethmers, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
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Boyles, J.
The essential question in this case-is
whether plaintiff is entitled to recover $1,646.69 from the county of Wayne as compensation for circuit court commissioner’s clerk from July 16, 1941, to March 23, 1942. Plaintiff claims he was ready, able and willing to perform the duties during that period of time but was illegally prevented from doing so — - that he was unlawfully ousted from that position. Certain preliminary questions are raised as to the jurisdiction of the circuit court to hear plaintiff’s appeal from the action of the board of county auditors, and these questions must be settled before the essential issue can be reached.
The controversy arises out of the contest between Arthur W. Sempliner and Prank FitzGerald as to which one was the legal incumbent of the office of circuit court commissioner for Wayne county. In quo warranto proceedings This court held that FitzGerald was entitled to the office for the balance of the term ending December 31, 1942. Sempliner v. FitzGerald, 300 Mich. 537. The somewhat complicated circumstances out of which the present controversy arises are as follows:
In January, 1937, plaintiff was appointed clerk to George B. Murphy, circuit court commissioner. When FitzGerald succeeded Murphy, January 2, 1941, plaintiff continued to act as his clerk. On June 23, 1941, Sempliner took office as circuit court commissioner when FitzGerald was ousted by the Wayne circuit court. Immediately the board of county auditors replaced plaintiff with another clerk upon recommendation of Sempliner, and the appointee went on the county payroll certified by the circuit court commissioners and approved for payment by the board of county auditors. Plaintiff continued to present himself for duty, claiming that Sempliner had no lawful authority. In February, 1942, when this court in Sempliner v. FitzGerald, supra, held that FitzGerald had the right to the office, FitzGerald replaced Sempliner. Thereafter plaintiff filed a claim with the board of county auditors for $1,646.69 representing his salary between .July 16.1941, and March 23,1942, the period when he was not on the payroll. The board of auditors denied this claim and sent notice of the denial to plaintiff on May 19, 1942. No appeal was taken from this denial. On August 8, 1942, plaintiff again filed the same identical claim with the board of auditors, which was referred to the prosecuting attorney, and thereupon that officer advised the board of auditors that the denial of plaintiff’s claim on May 19, 1942,-was final since no appeal had been taken. No action was taken by the board' of auditors on this second claim, whereupon the plaintiff filed a claim of appeal in the Wayne circuit court, claiming an appeal from a decision of the board of county auditors on August 18.1942, although no decision had, been made on that date. The decision was made May 19, 1942. The proceedings were all certified and returned to the court by the board of auditors and the defendant county of Wayne filed a motion in the circuit court to dismiss plaintiff’s appeal on the ground that the board of auditors had taken no action with reference to plaintiff’s second claim, on which plaintiff could base an appeal, and that therefore there was nothing at that time from which an appeal could be taken. The court denied the motion. Thereupon the county filed another motion to dismiss the plaintiff’s claim and his declaration on the ground that the matters Were res judicata by reason of the denial of plaintiff’s claim on May 19, 1942, from which no appeal had been taken. This motion was denied, the defendant Wayne county filed an answer reserving its rights under the motions and pleaded former adjudication as a special defense. Plaintiff replied asserting that his discharge was illegal, the cause came on for hearing, and the trial court decided that plaintiff was entitled to recover his salary between the date he was removed from the payroll, July 16,1941, and January 1, 1942. The decision was based on Act No. 392, Local Acts 1891, in which the term of the clerk of each circuit court commissioner is fixed at one year dating from January 1st in each year. Prom the judgment entered for plaintiff, the county appeals, claiming that the circuit court erred in refusing to dismiss the plaintiff’s appeal from the decision of the board of auditors to the circuit court, and that the original denial of plaintiff’s claim by the board of auditors was res judicata, not having been appealed from.
The preliminary questions raised here for determination are (1) Whether plaintiff could take an appeal to the circuit court from the failure of the board of auditors to consider his second claim on which no order was made; (2) was the denial of his claim on May 19, 1942, res judicatal These questions were appropriately raised in the court below and are again raised here.
According to the record, plaintiff’s claim was filed with the board of county auditors March 28, 1942. The board met in session on April 3, 1942, and by formal action referred plaintiff’s claim to the prosecuting attorney for an opinion. On May 19, 1942, the board met in session and received the written opinion of the prosecuting attorney “that the claim is wholly without merit, and it is, accordingly, recommended that the same be denied in its entirety.” The board of auditors thereupon, on May 19, 1942, took formal action denying the claim. It is conceded that no appeal was taken from this action of the board.
Article 8, § 9, Const. 1908, provides as follows:
“The boards of supervisors shall have exclusive power to fix the salaries and compensation of all county officials not otherwise provided for by law. The boards of supervisors, or in counties having county auditors, such auditors, shall adjust all claims against their respective counties; appeals may be taken from such decisions of the boards of supervisors or auditors to the circuit court in such manner as shall be prescribed by law. ’ ’
Under this provision, an appeal lies to the circuit court from the action of the board of county auditors in disallowing a claim. Chapman v. Muskegon County Supervisors, 169 Mich. 10; Braun v. County of Wayne, 303 Mich. 454. The manner prescribed by law for taking the appeal is set out by statute (1 Comp. Laws 1929, § 1187 [Stat. Ann. § 5.522]) as follows:
‘ ‘ "When the claim of any person, firm or corporation against a county shall be disallowed in whole or in part by the board of supervisors or board of county auditors, such person, firm or corporation may appeal from the decision of such board to the circuit court for the same county, by causing a written notice of such appeal to be served on the county clerk within twenty days after such disallowance: Provided, That no appeal shall be allowed, unless such claimant shall have appeared before the said board and presented evidence or shall have attached an affidavit in support of such claim. The appeal herein authorized shall be of no force or effect, unless there is filed with the county clerk at the same time the notice of appeal is served a bond of two hundred dollars running to the county with sufficient surety, to be approved by the county clerk, conditioned for the faithful prosecution of such appeal and the payment of all costs that may be adjudged against the appellant.”
By failure to appeal within 20 days from the dis-allowance of a claim by the board of county auditors, the claimant loses the right to seek recovery on appeal in the circuit court. Braun v. County of Wayne, supra.
Plaintiff later became aware that he had not laid a proper foundation for an appeal when his .claim was filed with and heard by the board of county auditors. He had not attached an affidavit in support of his claim, nor had he appeared before the board and presented evidence. In an effort to preserve a right to appeal, he subsequently (August 8, 1942) filed a second identical claim with the board, except that it was verified by affidavit. The board referred the matter to the prosecuting attorney who reported to the board:
“Mr. Boster has had one adjudication by. the board of auditors upon the merits of his claim. If he is dissatisfied, he should have taken an appeal within the time allowed by law. Having failed to do so, he is bound by your action, and the repeated filing of the same claim does not circumvent the finality of your decision. We reiterate, your earlier determination leaves nothing further to consider.’’’
Acting on this advice the board of county auditors took no further action in the matter. On August 28th plaintiff filed a claim of appeal in the circuit court. The only action of the board from which he could appeal was that disallowing his claim on May 19th. Not having taken an appeal within 20 days thereafter, his attempted appeal failed to confer jurisdiction on the circuit court and defendant’s motion to dismiss should have been granted.
Reversed and remanded for entry of an order dismissing the appeal.
North, C. J., and Starr, Wiest, Btjtzel, Bushnell, Sharpe, and Reid, JJ., concurred. | [
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-56,
42,
-7,
-77,
-64,
-46,
-66,
-123,
127,
4,
49,
7,
-102,
11,
-8,
46,
-104,
53,
34,
-20,
114,
-90,
-122,
117,
11,
-103,
44,
98,
34,
16,
-107,
-9,
-8,
-7,
46,
-82,
-99,
38,
-15,
72,
75,
15,
-106,
-99,
114,
80,
-121,
-4,
-32,
69,
93,
44,
7,
-114,
-122,
-93,
42,
-26,
-98,
3,
-49,
43,
22,
113,
-52,
102,
85,
71,
59,
-97,
-18,
-48
] |
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